eu network of independent experts on fundamental rights

CFR-CDF/Rep[UK]2005

EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTSRÉSEAU U.E. D’EXPERTS INDÉPENDANTS EN MATIÈRE DE DROITS FONDAMENTAUX

CFR-CDF

REPORT ON THE SITUATION OF FUNDAMENTAL RIGHTS IN THE UNITED KINGDOMIN 2005

submitted to the Network by Jeremy McBride

on 15 March 2006

Reference: CFR-CDF/UK/ 2005

The EU Network of Independent Experts on Fundamental Rights has been set up by the EuropeanCommission upon request of the European Parliament. It monitors the situation of fundamental rights in theMember States and in the Union, on the basis of the Charter of Fundamental Rights. It issues reports on thesituation of fundamental rights in the Member States and in the Union, as well as opinions on specific issuesrelated to the protection of fundamental rights in the Union

EU NETWORK OF INDEPENDENT EXPERTS ON FUNDAMENTAL RIGHTS

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TABLE OF CONTENTS

Preliminary remarks ..................................................................................................................... 5

CHAPTER I . DIGNITY ............................................................................................................... 6

ARTICLE 1. HUMAN DIGNITY ...............................................................................................................................6ARTICLE 2. RIGHT TO LIFE ...................................................................................................................................7

Euthanasia (active, passive, assisted suicide)................................................................................................7Other relevant developments ..........................................................................................................................7

ARTICLE 3. RIGHT TO THE INTEGRITY OF THE PERSON......................................................................................11Breaches of the right to the integrity of the person (general) .....................................................................11

ARTICLE 4. PROHIBITION OF TORTURE AND INHUMAN OR DEGRADING TREATMENT OR PUNISHMENT ...........12Centres for the detention of foreigners.........................................................................................................12Fight against the impunity of persons guilty of acts of torture (Article 5 of the Convention againsttorture, 1984).................................................................................................................................................13Protection of the child against ill-treatments...............................................................................................15Other relevant developments ........................................................................................................................16

ARTICLE 5. PROHIBITION OF SLAVERY AND FORCED LABOR ............................................................................16Trafficking in human beings (in particular for sexual exploitation purposes) ...........................................16Protection of the child (fight against child labour – especially with purposes of sexual exploitation orchild pornography and fight against the sexual tourism involving children).............................................17

CHAPTER II. FREEDOMS ....................................................................................................... 21

ARTICLE 6. RIGHT TO LIBERTY AND SECURITY .................................................................................................21Pre-trial detention. ........................................................................................................................................21Detention following a criminal conviction (including the alternatives to the deprivation of liberty andthe conditions for the access to release on parole)......................................................................................21Deprivation of liberty for juvenile offenders................................................................................................22Deprivation of liberty for foreigners (in order to prevent their unauthorised entry on the territory, witha view to their removal, including their extradition) ...................................................................................22Other relevant developments ........................................................................................................................23

ARTICLE 7. RESPECT FOR PRIVATE AND FAMILY LIFE.......................................................................................27Criminal investigations and the use of special or particular methods of inquiry or research ..................27Other relevant developments ........................................................................................................................29Protection of family life (general, developments in family law)..................................................................30Right to family reunification .........................................................................................................................31Private – and family life in the context of the expulsion of foreigners........................................................31Other relevant developments ........................................................................................................................31

ARTICLE 8. ARTICLE 8. PROTECTION OF PERSONAL DATA ...............................................................................32Protection of personal data (in general, right of access to data, right to have them rectified and theright to a remedy) ..........................................................................................................................................32Other relevant developments ........................................................................................................................32

ARTICLE 9. RIGHT TO MARRY AND RIGHT TO FOUND A FAMILY .......................................................................33Marriage and control of marriages suspect of being simulated .................................................................33

ARTICLE 10. FREEDOM OF THOUGHT, CONSCIENCE AND RELIGION..................................................................34Incentives and reasonable accommodations provided in order to ensure the freedom of religion,including the right to conscientious objection .............................................................................................34Other relevant developments ........................................................................................................................34

ARTICLE 11. FREEDOM OF EXPRESSION AND OF INFORMATION........................................................................35Freedom of expression and of information (in general)..............................................................................35Other relevant developments ........................................................................................................................35

ARTICLE 12. FREEDOM OF ASSEMBLY AND OF ASSOCIATION ...........................................................................37Freedom of peaceful assembly......................................................................................................................37Freedom of association .................................................................................................................................39Other relevant developments ........................................................................................................................39

ARTICLE 13. FREEDOM OF THE ARTS AND SCIENCES.........................................................................................40ARTICLE 14. RIGHT TO EDUCATION...................................................................................................................40

REPORT ON UNITED KINGDOM IN 2005

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Access to education .......................................................................................................................................40Other relevant developments ........................................................................................................................41

ARTICLE 15. FREEDOM TO CHOOSE AN OCCUPATION AND RIGHT TO ENGAGE IN WORK..................................42The right to engage in work and the right for nationals from other member States to seek anemployement, to establish themselves or to provide services......................................................................42

ARTICLE 16. FREEDOM TO CONDUCT A BUSINESS.............................................................................................42ARTICLE 17. RIGHT TO PROPERTY .....................................................................................................................43

The right to property and the restrictions to this right ................................................................................43ARTICLE 18. RIGHT TO ASYLUM ........................................................................................................................44

Asylum proceedings.......................................................................................................................................44Recognition of the status of refugee..............................................................................................................45

ARTICLE 19. PROTECTION IN THE EVENT OF REMOVAL, EXPULSION OR EXTRADITION ...................................46Subsidiary protection and prohibition of removals of foreigners to countries were they face a real andserious risk of being killed or being subjected to torture or to other cruel, inhuman and degradingtreatments ......................................................................................................................................................46Foreigners under a life-saving medical treatment.......................................................................................46Legal remedies and procedural guarantees regarding the removal of foreigners.....................................46

CHAPTER III. EQUALITY...................................................................................................... 48

ARTICLE 20. EQUALITY BEFORE THE LAW.........................................................................................................48Equality before the law .................................................................................................................................48

ARTICLE 21. NON-DISCRIMINATION ..................................................................................................................49Protection against discrimination ................................................................................................................49Fight against incitement to racial, ethnic, national or religious discrimination........................................51Protection of Gypsies / Roms........................................................................................................................52Other relevant developments ........................................................................................................................52

ARTICLE 22. CULTURAL, RELIGIOUS AND LINGUISTIC DIVERSITY....................................................................53Protection of religious minorities .................................................................................................................53

ARTICLE 23. EQUALITY BETWEEN MAN AND WOMEN.......................................................................................54Gender discrimination in work and employment .........................................................................................54Remedies available to the victim of gender discrimination (burden of proof, level of penalties, standingof organisations to file suits).........................................................................................................................54

ARTICLE 24. THE RIGHTS OF THE CHILD............................................................................................................55Other relevant developments ........................................................................................................................55

ARTICLE 25. THE RIGHTS OF THE ELDERLY .......................................................................................................55Participation of the elderly to the public, social and cultural life ..............................................................55

ARTICLE 26. INTEGRATION OF PERSONS WITH DISABILITIES ............................................................................55Protection against discrimination on the grounds of health or disability ..................................................56Professional integration of persons with disabilities: positive actions and employment quotas...............56Reasonable accommodations........................................................................................................................57Other relevant developments ........................................................................................................................57

CHAPTER IV. SOLIDARITY ................................................................................................... 59

ARTICLE 27. WORKER’S RIGHT TO INFORMATION AND CONSULTATION WITHIN THE UNDERTAKING .............59ARTICLE 28. RIGHT OF COLLECTIVE BARGAINING AND ACTION.......................................................................59

Social dialogue ..............................................................................................................................................59The right of collective actions (right to strike) and the freedom of the enterprise or the right to propertyand the issue of the intervention of the judiciary into collective actions ....................................................59

ARTICLE 29. RIGHT OF ACCESS TO PLACEMENT SERVICES................................................................................61ARTICLE 30. PROTECTION IN THE EVENT OF UNJUSTIFIED DISMISSAL..............................................................61ARTICLE 31. FAIR AND JUST WORKING CONDITIONS.........................................................................................61

Health and safety at work .............................................................................................................................61ARTICLE 32. PROHIBITION OF CHILD LABOUR AND PROTECTION OF YOUNG PEOPLE AT WORK.......................63

Protection of minors at work and monitoring of the protection..................................................................63ARTICLE 33. FAMILY AND PROFESSIONAL LIFE.................................................................................................67

Parental leaves and initiatives to facilitate the conciliation of family and professional life .....................67ARTICLE 34. SOCIAL SECURITY AND SOCIAL ASSISTANCE................................................................................67

Other relevant developments ........................................................................................................................67ARTICLE 35. HEALTH CARE ...............................................................................................................................68

Drugs (regulation, decriminalisation, substitutive treatments)...................................................................68


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Other relevant developments ........................................................................................................................68ARTICLE 36. ACCESS TO SERVICES OF GENERAL ECONOMIC INTEREST ............................................................68

Right to a healthy environment .....................................................................................................................68The right to access to information in environmental matters......................................................................69

ARTICLE 38. CONSUMER PROTECTION...............................................................................................................69

CHAPTER V. CITIZEN’S RIGHTS ........................................................................................ 70

ARTICLE 39. RIGHT TO VOTE AND TO STAND AS A CANDIDATE AT ELECTIONS TO THE EUROPEAN

PARLIAMENT.......................................................................................................................................................70ARTICLE 40. RIGHT TO VOTE AND TO STAND AS A CANDIDATE AT MUNICIPAL ELECTIONS.............................70

Right to vote and to stand as a candidate to municipal elections for third country nationals...................70ARTICLE 41. RIGHT TO GOOD ADMINISTRATION ...............................................................................................70ARTICLE 42. RIGHT OF ACCESS TO DOCUMENTS ...............................................................................................70ARTICLE 43. OMBUDSMAN ................................................................................................................................70ARTICLE 44. RIGHT TO PETITION .......................................................................................................................70ARTICLE 45. FREEDOM OF MOVEMENT AND OF RESIDENCE..............................................................................71

Other relevant developments ........................................................................................................................71ARTICLE 46. DIPLOMATIC AND CONSULAR PROTECTION..................................................................................71

CHAPTER VI. JUSTICE .......................................................................................................... 72

ARTICLE 47. RIGHT TO AN EFFECTIVE REMEDY AND TO A FAIR TRIAL .............................................................72Access to a court and, in particular, the right to legal aid / judicial assistance ........................................72Independence and impartiality .....................................................................................................................74Publicity of the hearings and of the pronouncement of the decision ..........................................................75Reasonable delay in judical proceedings .....................................................................................................76Other relevant developments ........................................................................................................................76

ARTICLE 48. PRESUMPTION OF INNOCENCE AND RIGHT OF DEFENCE...............................................................78Presumption of innocence.............................................................................................................................78The rules governing the evidence in criminal matters.................................................................................78Other relevant developments ........................................................................................................................80

ARTICLE 49. PRINCIPLES OF LEGALITY AND PROPORTIONALITY OF CRIMINAL OFFENCES AND PENALTIES ....80Legality of criminal offences and penalties..................................................................................................80Other relevant developments ........................................................................................................................82

ARTICLE 50. RIGHT NOT TO BE TRIED OR PUNISHED TWICE IN CRIMINAL PROCEEDINGS FOR THE SAME

CRIMINAL OFFENCE.............................................................................................................................................82


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PRELIMINARY REMARKS

The survey that follows is subject to the same caveats as those attached to previous reports,namely, that it is inevitably incomplete given the difficulty of encapsulating all the developmentsrelating to three discrete jurisdictions with four legislative bodies and numerous actors,governmental and non-governmental. Furthermore it is always likely to be very difficult in aperiod of such considerable activity relating to a wide range of issues – evident in the discussionbelow – to discern either the entire significance of particular measures or the way in which theyinteract with each other, whether positively or negatively. Moreover the need in such a survey torely predominantly on evident occurrences in the form of the adoption of legislation, the rulings ofcourts or the pronouncements of different bodies (official and private, national and international)means that other developments and problems – no matter how significant - are less likely to bediscerned. This is most obviously true of the practice of discrimination and the actual economicand social conditions of groups within a country but it is also likely to be the case when it comes tothe effective exercise by some of civil and political rights.

Nonetheless it is possible to see some potentially positive legislative and case law developments inthe course of 2005, some of which might come to be regarded as examples of good practice forwider emulation. These include:

• the extension of the jurisdiction of the Independent Police Complaints Commission tocases where persons have died or been seriously injured following some form of direct orindirect contact with the police where there is reason to believe that this contact may havecaused or contributed to the death or serious injury;

• the enactment of the the Prohibition of Female Genital Mutilation (Scotland) Act 2005;• the successful prosecution for torture in R v Zardad and the ruling in A v Secretary of State

for the Home Department (No 2) that evidence obtained by torture was not to beadmissible against a party to proceedings in a British court irrespective of where, by whomor on whose authority the torture had been inflicted, notwithstanding that the latter couldbe undermined by the relatively weak stance of the majority that doubt as to the use oftorture is insufficient for evidence to be excluded;

• the financial support for voluntary organizations that provide services and support foryoung people at risk of becoming involved in prostitution and the substantial financial andtechnical assistance towards efforts to tackle the trafficking of children that originates inAsian countries;

• the protection from harassment in one’s home provided by the offence created in theSerious Organised Crime and Police Act 2005;

• the conclusion in Re Wyatt that a clinician may refuse treatment for reasons ofprofessional conscience but should not another from so acting should that clinician feelable to do so;

• the ruling in the Denbigh High School case that a school uniform policy cannot be insistedupon without first considering whether the requirements in it are necessary in a democraticsociety;

• the adoption of a power to direct excluded pupils to attend alternative educationalprovision;

• the extended scope of the protection against discrimination on grounds of disability;• the plans to extend the payment of child benefit to include young people on unwaged

vocational training or in full-time advanced education;• the arrangements for judicial appointments in the Constitutional Reform Act 2005, which

have the potential to reinforce judicial independence and to establish a clearer separationof powers between the executive and the judiciary.

However, all these welcome developments are, at the very least, counterbalanced by a number ofpressing concerns about the impact of various developments on rights and freedoms recognised inthe Charter. These include:


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• the lack of public disclosure before the tragic death of Mr Menezes of the fact that thetactics to deal with suspected terrorists had been changed;

• the length of time taken for the investigation into the shooting, which has still not beenfinalised;

• the time taken to correct inaccurate information given to, or circulating in, the media aboutthe events and Mr Menezes;

• the conclusion that the status of occupying power was found insufficient in the Al-Skeinicase to engage responsibility for the purposes of Article 2 ECHR ;

• the view on the part of the executive that there was nothing untoward in the use ofindefinite detention or in the treatment of individual detainees;

• the continuing problem of overcrowding in prisons;• the treatment of women suspected of being victims of trafficking for the purpose of

prostitution ;• the absence of any accurate, reliable data regarding the trafficking of children, the number

of children involved in prostitution or in hazardous occupation;• the apparent inadequacy of the protection for migrant workers against exploitation;• the very low age of criminal responsibility and the high number of children in penal

custody;• the extent of the restrictions imposed in control orders made under the Prevention of

Terrorism Act 2005;• the inadequacy of the arrangements for communication between a Special Advocates and

an appellant after they have seen cleared material;• the conclusion in the Al-Jedda case that a United Nations Security Resolution was to be

regarded as displacing the requirements of ECHR Article 5 rather being a possibleauthority for deprivation of liberty to be used consistently with them;

• the decision to maintain in force the reservation to the Convention on the Rights of theChild, whereby the rights in the Convention do not apply as regards the entry, stay in anddeparture form the United Kingdom of children subject to immigration control;

• the delay in fully implementing the ruling in the Hashman and Harrup case;• the absolute requirement for 24 hours’ notice before a demonstration can be held in a

designated area within a kilometre from Parliament Square;• the continuing inadequacy of the arrangements for education in prison;• the five day time-limit for the filing of appeals against negative Asylum and Immigration

Tribunal decisions;• the use of unenforceable diplomatic assurances that individuals will not be ill-treated in an

effort to facilitate their deportation to countries that do not currently fulfil their existinglegal obligations not to use torture and inhuman and degrading treatment;

• the inadequacy of the measures being taken to protect Roma/Gypsies and Travellers fromdiscriminatory treatment;

• the failure to accept rights of individual petition under Article 14 of CERD, and under theOptional Protocol to the ICCPR;

• the continuing gender pay gap;• the high level of unemployment amongst the disabled; and• the inadequacy of the lowest wages payable to young workers.

Although these concerns are not all matters for which a resolution that is both speedy andsatisfactory can be realistically expected, they ought to be a major focus of attention in the courseof 2006.

CHAPTER I . DIGNITY

Article 1. Human dignity


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No developments have been reported for the period under scrutiny under this provision of theCharter.

Article 2. Right to life

Euthanasia (active, passive, assisted suicide)

Legislative initiatives, national case law and practices of national authorities

The guidance issued by the General Medical Council entitled Withholding and Withdrawing Life-prolonging Treatment: Good Practice was held in R (on the application of Burke) v. GeneralMedical Council [2005] EWCA Civ 1003 not to be unlawful. It was considered that there wasnothing in the guidelines that justified the fear of the claimant, who suffered from a congenitaldegenerative brain condition that would ultimately leave him in need of artificial nutrician andhydration (“ANH”) by tube to survive but who would retain full cognitive faculties even duringthe end stage of the disease), that those caring for him might decide that his life was not worthliving and withdraw ANH to bring it to an end, notwithstanding that he was able to communicateto them that he wished them to continue to keep him alive.

Other relevant developments

International case law and concluding observations of expert committees adopted during theperiod under scrutiny and their follow-up

The Committee of Ministers has adopted an interim resolution (ResDH(2005)20, 23 February2005) with respect to the measures taken or envisaged to ensure compliance with the judgments inEur.Ct.H.R. (4th sect.) Finucane v. United Kingdom (Appl. no 29178/95) judgment of 1 July 2003),Eur.Ct.H.R. Jordan v. United Kingdom (3rd sect.) (Appl. no 24746/94) judgment of 4 May 2001,Eur.Ct.H.R. (3rd sect.) Kelly and Others v. United Kingdom (Appl. no 30054/96) judgment of 4May 2001, Eur.Ct.H.R. (3rd sect.) McKerr v. United Kingdom (Appl no 28883/95, 4 May 2001),Eur.Ct.H.R. (4th sect.) McShane v United Kingdom (Appl. no 43290/98) judgment of 28 May 2002and Eur.Ct.H.R. (3rd sect.) Shanaghan v United Kingdom (Appl. no 37715/97) judgment of 4 May2001) in which the European Court of Human Rights had found violations of Article 2 ECHR inrespect of various failings in the investigative procedures concerning the death of the applicants'relatives, namely: lack of independence of police investigators investigating the incident from theofficers or members of the security forces implicated in the incident (Jordan, McKerr, Kelly andothers, Shanaghan, McShane, Finucane); the independent police investigation did not proceedwith reasonable expedition (McKerr, McShane); lack of public scrutiny and information to thevictims' families on the reasons for the decision of the Director of Public Prosecutions not toprosecute any officer in respect of relevant allegations (Jordan, McKerr, Kelly and others,Shanaghan, Finucane); the inquest procedure did not play an effective role in securing aprosecution in respect of any criminal offence which may have been disclosed (Jordan, McKerr,Kelly and others, Shanaghan, McShane, Finucane); he scope of examination of the inquest wastoo restricted (Shanaghan, Finucane); there was no prompt or effective investigation intoallegations of collusion (Shanaghan, Finucane); the persons who shot the deceased, and in theMcShane case, the soldier who drove the armoured personnel carrier that fatally injured theapplicant's husband, could not be required to attend the inquest as witnesses (Jordan, McKerr,Kelly and others, McShane); the non-disclosure of witness statements prior to the appearance of awitness at the inquest prejudiced the families' ability to prepare for and to participate in the inquestand/or contributed to long adjournments (Jordan, McKerr, Kelly and others, Shanaghan,McShane); the absence of legal aid for the representation of the victim's family (Jordan); thepublic interest immunity certificate had the effect of preventing the inquest from examiningmatters relevant to the outstanding issues in the case (McKerr); and the inquest proceedings didnot commence promptly and did not proceed with reasonable expedition (Jordan, McKerr, Kelly


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and others, Shanaghan, McShane). In particular it noted that certain general measures remained tobe taken and that further information and clarifications were outstanding with regard to a numberof other measures, including, where appropriate, information on the impact of these measures inpractice. The Committee's on-going assessment of measures taken so far or envisaged covers“calling in” arrangements for police investigations (ie,requesting that an incident be investigatedby officers from a police service from Great Britain) ; the role of the Serious Crimes Review Teamwhose remit is “to review a number of unsolved major crimes, including murder and rape, where itis thought that new evidential leads may be developed”; the possibility of judicial review ofdecisions not to prosecute under the Human Rights Act 1998; new practices with respect to theverdicts of coroners’ juries at inquests; developments regarding disclosure at inquests (followingthe judgment in R v. Her Majesty's Coroner for the Western District of Somerset, ex parteMiddleton [2004] UKHL 10, the Court of Appeal in Northern Ireland found on 10 September 2004in the case of Jordan ([2004] NICA 29 and [2004] NICA 30) that Rule 16 of the Coroners' Rulesfor Northern Ireland could and must be read in such a manner as to allow the inquest to set out itsfindings regarding the contested relevant facts that must be determined to establish thecircumstances of the death. This could be achieved either in the form of a narrative verdict or of averdict giving answers to a list of specific questions asked by the coroner); legal aid for inquestsunder the previous ex gratia scheme; measures to give effect to recommendations followingreviews of the coroners' system; and the Inquiries Bill intended to serve as a basis for a furtherinquiry in one of these cases. The Committee called on the United Kingdom government rapidly totake all outstanding measures and to continue to provide the Committee with all necessaryinformation and clarifications to allow it to assess the efficacy of the measures taken, including,where appropriate, their impact in practice. It should be noted that since November 2000, there hasbeen an independent Police Ombudsman in Northern Ireland, established by virtue of the Police(Northern Ireland) Act 1998, with the power to investigate all complaints against the police,including deaths alleged to have been caused by police officers acting in the course of their duty.Where it appears that the conduct of a member of the police service may have resulted in the deathof a person the Chief Constable is required, under section 55(2) of the Act, to refer the matter tothe Police Ombudsman. The Ombudsman does not adjudicate on guilt or punishment but, wherethe report of the investigation indicates that a criminal offence may have been committed by apolice officer, the Ombudsman is required to send a report, together with any appropriaterecommendations, to the Director of Public Prosecutions, who carefully considers the evidence,information and recommendations of the Ombudsman. It is for the DPP to decide if a prosecutionshould be commenced; this decision is based on the application of the test for prosecution, namelywhether there is sufficient, admissible evidence to afford a reasonable prospect of conviction and,if there is, whether prosecution is in the public interest. In all cases, the DPP informs theOmbudsman by letter of the decision taken and the reasons for it.

It should also be noted that Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the reporton his visit to the United Kingdom, 4th – 12th November 2004, (CommDH(2005)6), recommendedthat the United Kingdom should ensure that the public inquiries recommended by the Cory reportare capable of establishing the full circumstances surrounding the deaths of the four individualsconcerned (Billy Wright, and Robert Hamill, Rosemary Nelson and Patrick Finucane) where thecollusion of state actors had been alleged and meeting the legitimate interests of their families. TheCommissioner also recommended that the United Kingdom should ensure the access of coronersto all relevant material held by the police and that inquests conducted into suspicious deaths inNorthern Ireland prior to the adoption of the Human Rights Act are capable of satisfying therequirements of Article 2 ECHR.

In Eur.Ct.H.R. (3rd sect.) Bubbins v. the United Kingdom (Appl. no 50196/99 judgment of 17March 2005 no violation of Article 2 on account of the actions of the armed police officer who hadfired the shot killing the applicant’s brother following a siege at his flat (having been mistakenlybelieved to have had a gun, having ignored previous warnings to give himself up and havingconveyed on occasions a clear impression that he would open fire), the planning and control of theoperation (which had remained at all times under the control of senior officers with the


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deployment of the armed officers having been reviewed and approved by the tactical firearmsadvisers who had been summoned to the scene) or any failure to conduct an effectiveinvestigation. Although the Coroner had directed the inquest jury to return a verdict of lawfuldeath, this had not deprived the proceedings of their effectiveness since, if an independent judicialofficer such as a Coroner decided after an exhaustive public procedure that the evidence heard onall relevant issues clearly pointed to only one conclusion, and did so in the knowledge that hisdecision might be subject to judicial review, it could not be maintained that this decision impairedthe effectiveness of the procedure. However, it did hold (6-1) that there had been a violation of theright to an effective remedy under Article 13 because, notwithstanding that the inquest procedurehad provided in the circumstances an effective mechanism for subjecting the circumstancessurrounding the killing to public and searching scrutiny, and had thereby satisfied the proceduralobligations under Article 2, no judicial determination had ever been made on the liability indamages, if any, of the police on account of the manner in which the incident had been handledand concluded. In the instant case, the applicant, even if ultimately successful in a civil actionagainst the police, had had no prospect of obtaining compensation for non-pecuniary damage sincedomestic law did not provide for such. On that account, it would also have been most improbablethat she would have received legal aid to take civil proceedings.


The death on 22 July of Jean Charles de Menezes, a Brazilian citizen, who was shot in the headseven times after officers wrongly suspected him of being a suicide bomber following asurveillance operation connected with several suicide bombings in London but without having firstbeen challenged or warned by the police, has led to the public disclosure of ‘Operation Kratos’, thename given to a range of tactics used to defend against the threat from suicide bombers. OperationKratos was developed by the Metropolitan Police Service, in partnership with the national bodyfor policing in the United Kingdom, the Association of Chief Police Officers (“ACPO”), after theterrorist attacks in the United States on 11 September 2001. It was adopted as national policy andpromulgated through the ‘Terrorism and Allied Matters Committee’ of the Association of ChiefPolice Officers to all Forces around the United Kingdom in January 2003 (Suicide terrorism,report by the Metropolitan Police Commissioner to the Metropolitan Police Authority, 27 October2005). There are three separate plans under this generic title: Operation Andromeda is designed todeal with the spontaneous sighting by a member of the public of a suspected suicide bomber;Operation Beach is where there is an intelligence-led covert operation to locate and arrest personssuspected of involvement in acts of terrorism; and Operation Clydesdale is where intelligence hasbeen received about a suicide attack on a pre-planned event. The options for all three operationsrange from an unarmed stop of the suspect by uniformed officers, through to the deployment ofarmed police officers but the detailed range of tactics involved is not in the public domain.Specially trained ACPO officers, acting as the ‘Designated Senior Officer’, (DSO) will commandthese operations. It is the DSO who will give the order to a firearms officer to shoot. Legal adviceto support this stance has been obtained. There is a DSO on call 24 hours per day, seven days perweek to deal with suspected suicide terrorist incidents. An important consideration in the tacticsdeveloped is the possible use by a suicide terrorist of a type of explosive that are extremelysensitive to impact, shock and electrostatic discharge and the advice of Government scientists thatthe use of baton guns, Taser, or firearms that impact on this material will cause it to detonate.Another important consideration is reliance on evidence that suicide bombers will spontaneouslydetonate their devices if they believe they have been identified, meaning that any tactics deployedhave to involve officers acting covertly to retain the element of surprise and they have to ensureimmediate incapacitation to eradicate any opportunity for the bomber to cause the device tofunction. It has been emphasised by the Metropolitan Police Service that this is not a ‘shoot to kill’policy and that the tactics are wholly consistent with Section 3 of the Criminal Law Act 1967,which provides that ‘A person may use such force as is reasonable in the circumstances in theprevention of crime, or in the effecting or assisting in the lawful arrest of offenders or suspectedoffenders or of persons unlawfully at large’. This legal requirement is also articulated in the ACPOManual of Guidance on Police Use of Firearms. There is no specific legal requirement for an


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officer to give a verbal challenge before firing and the ACPO Police Use of Firearms manualsuggests that there will be occasions when it is not appropriate or practical to do so. TheMetropolitan Police Service has stated there is a constant review of the threat and intelligence toensure tactics are appropriate and proportionate and reviews of the policy have been undertakenwithin it and also at the national level. As a result of the former review the tactical options havebeen widened to cover a greater range of operational circumstances. There has also been a changeto the terminology used in order to improve clarity around tactical selection. Training to updateDSOs on these developments is imminent. The actual circumstances leading to the death of MrMenezes is the subject of an investigation by the Independent Police Complaints Commission.

In dismissing appeals against the refusal of judicial review applications in respect of the allegedfailure and/or refusal to conduct independent inquiries into the deaths of five persons shot inseparate armed incidents involving British troops in Iraq and of a sixth person who died in aBritish military prison there, it was held in R (on the application of Al-Skeini) v. Secretary of Statefor Defence [2005] EWCA Civ 1609 that the United Kingdom, although an occupying power, wasnot in effective control of Basrah City during the Iraq occupation from May 2003 until June 2004for the purposes of the ECHR and therefore, with respect to the five persons shot, did not apply toacts of British troops there during that period. There had been a concession in respect of the sixthdeath that the United Kingdom was exercising extra-territorial jurisdiction and the 1998 Actapplied accordingly to this case, which was remitted to the administrative for consideration offurther evidence as to whether there had been an infringement of the United Kingdom’s proceduralobligations in respect of Articles 2 and 3 ECHR.

The Policing Board of Northern Ireland has decided to purchase a new plastic bullet, renamed theAttenuating Energy Projectile, which still has the potential to kill. British-Irish Rights Watchreported that no assessments had been carried out on the possible effects of the new bullet onchildren and young people, who have been over-represented among the casualties of formerversions of the rubber and plastic bullet, and that the Board had failed to consult with those criticalof this new generation of potentially lethal weapon; March 2005.

The Serious Organised Crime and Police Act 2005 amends Part 2 of the Police Reform Act 2002to bring a new category of cases under the jurisdiction of the Independent Police ComplaintsCommission. The new category, 'death or serious injury matters', will cover cases where personshave died or been seriously injured following some form of direct or indirect contact with thepolice and there is reason to believe that the contact may have caused or contributed to the death orserious injury. They will be cases that do not involve a complaint or a conduct matter when firstidentified and categorised. Such cases may relate to the direction and control of a police force,which would normally be excluded by section 14 of the Act. On completion of the investigation, afinal report into a death or serious injury matter will be submitted and the Independent PoliceComplaints Commission may make recommendations or give advice. Where the investigationreveals a conduct matter (a criminal or disciplinary offence), the matter will be treated as a conductmatter from that point forward.

In dismissing an application to quash the inquest verdict into the unexpected death of theclaimant’s father in a hospital following an elective surgical procedure, where the coroner had notcalled any witnesses other than the pathologist and the consultant but had available to him thedeceased’s medical records, the report of the post mortem, background information from thedeceased’s general practitioner and a medical report from the consultant who had carried out theprocedure, it was held in R (on the application of Goodson) v. Bedfordshire and Luton Coroner[2004] EWHC 2931 (Admin), [2005] 2 All ER 791 that there was no separate proceduralobligation under Article 2 ECHR where a death in hospital raised no more than a potential liabilityin negligence. In such cases the requirement of an effective investigation was linked to the positiveobligation of the state to establish a framework of legal protection, including an effective judicialsystem, for determining the cause of death and any liability on the part of the medicalprofessionals involved. An inquest played only a part in the discharge of the state’s positiveobligation under Article 2 to set up an effective judicial system and it could not be challenged on


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the ground that by itself it was insufficient to meet the Article 2 obligation. The totality ofavailable procedures, including the possibility of a civil claim in negligence, had to be looked at. Itwould only be in exceptional cases, where the circumstances gave rise to the possibility of abreach of the state’s positive obligations to protect life under Article 2 that the separate proceduralfunction would arise and an inquest might have to perform the function of dischargin thatobligation. In the instant case there had been no question of any actual or possible breach of thestate’s positive obligations under Article 2 and the coroner had therefore been correct to refuse toconduct the inquest as an investigation for the purposes of Article 2. Moreover his decision hadbeen otherwise lawful as his judgment that fuller investigation was not required had beenreasonable on the material before him.

As part of its campaign to end the deaths of children in penal custody and to end the unnecessaryuse of penal custody for children (see also “Article 6”), the Howard League for Penal Reform hasrevealed that an average of two children die in prisonevery year and twenty-seven of the twenty-nine children who died since 1990 had taken their own lives, one was the victim of homicide andone boy died whilst being restrained by staff. Twenty-seven of the children died in prisons and twodied in privately run jails for children, secure training centres. It also revealed that two boys hadhad died in prisons in 2005 : a 16 year old hanged himself in Lancaster Farms prison and a 17 yearwas found in his cell in Hindley prison with a ligature round his neck.; press release, 26 September2005.

Positive aspects

The extension of the jurisdiction of the Independent Police Complaints Commission to caseswhere persons have died or been seriously injured following some form of direct or indirectcontact with the police where there is reason to believe that this contact may have caused orcontributed to the death or serious injury has the potential to eliminate uncertainties about theresponsibility of the police for serious injuries or deaths.

Reasons for concern

Comment on the precise circumstances in which the use of force by the police led to the death ofMr Menezes would be premature but the lack of public disclosure before this tragic event of thefact that the tactics to deal with suspected terrorists had been changed is disconcerting. While fulldisclosure of them might well undermine the efficacy of preventive operations, some awarenessthat there had been a change of approach might have allowed for a thorough scrutiny of theadequacy of the arrangements in place to ensure that the new tactics could be implemented in amanner consistent with the requirements of Article 2 ECHR. The length of time taken for theinvestigation into the shooting, which has still not been finalised, is a matter of concern, as is thetime taken to correct inaccurate information given to, or circulating in, the media about the eventsand Mr Menezes. There must also be concern about the conclusion that the status of occupyingpower was found insufficient in the Al-Skeini case to engage responsibility for the purposes ofArticle 2 ECHR.

Article 3. Right to the integrity of the person

Breaches of the right to the integrity of the person (general)


Like the Female Genital Mutilation Act 2003 for England, Wales and Northern Ireland, theProhibition of Female Genital Mutilation (Scotland) Act 2005 repeals and re-enacts for Scotlandthe provisions of the 1985 Act, gives extra-territorial effect to those provisions and increases themaximum penalty for FGM - procedures which include the partial or total removal of the external


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female genital organs for cultural or other non-therapeutic reasons - in Scotland from 5 to 14 years'imprisonment. Further, it makes additional forms of FGM unlawful, allows the Scottish Ministersto modify the procedures which are offences and adds the offences under the Act to Schedule 1 tothe Criminal Procedure (Scotland) Act 1995 ("the 1995 Act")(offences against children under 17to which special provisions apply). This provides the additional powers of arrest without warrantspecified in section 21 of the 1995 Act in respect of those offences. Further, by virtue of section 48of the 1995 Act, the listing of FGM offences in Schedule 1 to the 1995 Act will allow a convictingcourt to refer a child who was the victim of an FGM offence as well as any child living in the samehousehold as the victim or person convicted of the offence to the reporter to the children's panel.The listing of FGM offences in Schedule 1 to the 1995 Act will also give the reporter grounds ofreferral to refer a child who was the victim of an FGM offence, as well as any child living in thesame household as the victim or person convicted of the offence, to a children's hearing. Inaddition to a referral at the time of the offence, the listing will also allow the reporter to refer to achildren's hearing children who are or become or are likely to become members of the samehousehold as either the victim or the offender, even where there was no subsequent convictionwith regard to those children.

Positive aspects

The enactment of the Prohibition of Female Genital Mutilation (Scotland) Act 2005.

Article 4. Prohibition of torture and inhuman or degrading treatment or punishment

Centres for the detention of foreigners


In the CPT Report of its visit on 23 July 2004 (published in 9 June 2005) there is a note of animmediate observation, pursuant to Article 8(5), of the Convention, concerning three personsdetained under the the Anti-terrorism, Crime and Security Act 2001 (“ATCSA”). The delegationstressed that it was clinically inappropriate to place the first of these persons, who was sufferingfrom a most severe post-traumatic stress disorder and who had been transferred from BelmarshPrison to Broadmoor Special Hospital, in an establishment that was mainly tasked with the care ofdangerous and violent patients. It asked for him to be transferred as a matter of urgency to adifferent type of treatment facility. It also asked for immediate steps to be taken to ensure that thesecond person, who suffered from major physical disabilities, received the care and treatmentwarranted by his condition and it stressed that, if this person remained in his present conditions inBelmarsh, which did not offer the appropriate treatment facilities, his state of health was likely todeteriorate further. The delegation also asked for urgent consideration to be given to the transfer ofthe third person, who suffered from a disability (amputation of both forearms) that prevented himfrom urinating or defecating unaided and whose mental state had deteriorated seriously as a resultof his detention, leading to both severe depression and post-traumatic stress disorder, to anestablishment with proper facilities to deal with his physical disability and to treat his mentaldisorder, in a humane environment. It further stressed that psychiatric treatment for this detainee –which must not be delayed any longer – was both an acute, life-saving measure and an essentialprerequisite for any rehabilitative effort. These persons were subsequently released on bail. Inaddition the CPT recommended that: staff at Belmarsh Prison to be reminded that ill-treatment ofany form, including threats, abusive or aggressive language and mockery, will not be tolerated andwill be the subject of severe sanctions; the necessary steps to be taken to ensure that ATCSAdetainees whose state of health so requires benefit, without further delay, from treatmentappropriate to their specific needs, in or with the support of appropriate care facilities capable ofoffering the therapeutic environment necessary for such treatment and a proper doctor-patientrelationship; the approach to managing persons deprived of their liberty under ATCSA to be


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reviewed, having due regard to the guidelines that it set out, and alternative approaches must befound if the prisobn system is unable to meet these needs; it should be expressly provided thatpersons certified under the ATCSA enjoy the right of access to notification of custody, the right ofaccess to a lawyer and the right of access to a doctor as from the very outset of their deprivation ofliberty, whatever their place of custody; it should be expressly provided that, where necessary, theassistance of a qualified interpreter must be organised to enable ATCSA detainees to benefit fullyfrom the exercise of those three rights; steps to be taken to ensure that ATCSA detainees areinformed in writing of all their rights in a language they understand; and proactive and constantefforts to be made to guarantee to persons detained under ATCSA humane and decent treatmentpreserving their physical and psychological integrity. In its comments the CPT stated that it truststhat, as part of the anti-bullying strategy developed by the Prison Service over several years, theUnited Kingdom authorities will take the necessary steps to ensure that Belmarsh Prison staff arealert to the risk of racist conduct by other prisoners towards ATCSA detainees and interveneappropriately whenever necessary. It also stated that the United Kingdom authorities must ensurethat there are no more instances of ATCSA detainees not being able to have access to their lawyersIn its response (9 June 2005) the United Kingdom Government categorically rejected thesuggestion that at any point during their detention the ATCSA detainees were treated in an“inhuman or degrading” manner that may have amounted to a breach in the United Kingdom’sinternational human rights obligations. It firmly believed that at all times the detainees receivedappropriate care and treatment in Belmarsh and had access to all necessary medical support, bothphysical and psychological, from medical support staff and doctors. The Government accepts thatthe individuals had difficult backgrounds prior to detention, but does not accept that “detentionhad caused mental disorders.” Some of the detainees had mental health issues prior to detention,but that did not stop them engaging in the activities that led to their certification and detention.

It should also be noted that Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the reporton his visit to the United Kingdom, 4th – 12th November 2004, (CommDH(2005)6), recommendedthat the United Kingdom take all possible measures to ensure that foreigners detained underImmigration Act powers are not held in ordinary prisons.

Reasons for concern

Concern about the approach to managing persons deprived of their liberty under ATCSA may beless pressing given the move to use of control orders without imprisonment under the Preventionof Terrorism Act 2005 (see ‘Article 6’ below) but the view on the part of the executive that therewas nothing untoward in the use of indefinite detention or in the treatment of individual detaineesis disturbing.

Fight against the impunity of persons guilty of acts of torture (Article 5 of the Convention againsttorture, 1984)


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould ensure that evidence suspected of having been extracted through torture is in no caseadmissible and in particular is not relied on in control order proceedings.


An Afghan warlord was, pursuant to the Criminal Justice Act 1988, s 134 and the Taking ofHostages Act 1982, convicted of conspiring to torture and take hostages in Afghanistan in the1990s in R v. Zardad, 7 April 2005. The defendant, who was sentenced to twenty years


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imprisonment, was found to be capable of being treated as a public official on a de facto basis andthe conviction relied in part on video identification procedures.

The Joint Committee on Human Rights has expressed its concern about the possible use of tortureevidence by United Kingdom authorities. It has concerns about whether the Government has anysystem in place for ascertaining whether intelligence which reaches it in relation to peopleallegedly involved in terrorism-related activity has been obtained by torture. It observed that thePrevention of Terrorism Bill (now the 2005 Act) was silent on this question, despite the obviousconcern that the material relied on by the Government to obtain control orders may well includematerial which has been obtained by torture. It recommended that the Government takes theopportunity presented by this Bill to implement the UNCAT recommendation that it give someformal effect to its expressed intention not to rely on or present in any proceedings evidence whichit knows or believes to have been obtained by torture. This recommendation was not followed;Prevention of Terrorism Bill, HL 68/HC 334, 4 March 2005.

However, evidence obtained by torture was held in A v. Secretary of State for the HomeDepartment (No 2) [2005] UKHL 71 not to be admissible against a party to proceedings in aBritish court irrespective of where, by whom or on whose authority the torture had been inflictedand the cases of the appellants - who had been certified under the Ant-terrorism, Crime andSecurity Act 2001, s 21 as persons whose presence in the United Kingdom was a risk to nationalsecurity and who were suspected of being a terrorist - were remitted to the Special ImmigrationAppeals Commission for reconsideration of the refusal to cancel the certificates, the commissionhaving previously concluded that the fact that evidence relied upon for the purpose of issuing themhad or might have been procured by torture inflicted by foreign officials without the complicity ofthe British authorities was relevant to its weight but did not render it inadmissible. All the LawLords accepted that it was for an applicant to raise a plausible argument (but not to prove) thatevidence may have been obtained through torture, with it then falling to the court to makenecessary enquiries. However, while a strong dissenting minority of three Law Lords consideredthat evidence is inadmissible unless it can be proved that it was not obtained through torture, themajority (four Law Lords) held that where there remained doubt as to whether evidence isobtained through torture, it may be admitted, with no account being taken of this doubt. As LordBingham states in his minority opinion: “This is a test which, in the real world, can never besatisfied. The foreign torturer does not boast of his trade.” The ruling does not resolve the questionof the extent to which, if at all, the executive can take account of evidence obtained by torture inactions that it might take but it it is likely to preclude any reliance on such evidence in proceedingsconcerned with the legality of those actions.

The grant to the mother of a young child (Z) - who suffered from beta thalassaemia major andwhose best chance of a cure was by transplant of stem cells from a tissue compatible donor, wherethe probability of a such donor who was not a sibling being extremely low - of a licence underpara 1(1)(d) of Schedule 2 to the Human Fertilisation and Embryology Act 1990 for IVFtreatment, having the embryos tested for beta thalassaemia major by pre-implantation feneticdiagnosis (PGD) and for tissue compatibility with Z by human leukocyte antigen (HLA) typingwas upheld in R (on the application of Quintavelle) v. Human Fertilisation and EmbryologyAuthority [2005] UKHL 28, [2005] 2 All ER 555 on the basis that both PGD and HLA typingcould lawfully be authorised by the authority as activities to determine the suitability of theembryo for implantation within the meaning of para 1(1)(d) since the concept of suitability wasbroad enough to include suitability for the purposes of the particular mother. Furthermore it wasconsidered that Parliament had not intended to confine the authority’s powers to unsuitability ongrounds of genetic defect; the limits of permissible embryo selection were for the authority todecide. The fact that decisions left by the 1990 Act to the authority might raise difficult ethicalquestions was no objection as it had been specifically created to make ethical decisions and, ifParliament should consider it to be failing in that task, it had regulatory powers in reserve.

Positive aspects


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The successful prosecution for torture in R v. Zardad and the ruling in A v. Secretary of State forthe Home Department (No 2) that evidence obtained by torture was not to be admissible against aparty to proceedings in a British court irrespective of where, by whom or on whose authority thetorture had been inflicted. However, the latter could be undermined by the relatively weak stanceof the majority that doubt as to the use of torture is insufficient for evidence to be excluded and itremains to be seen how this will be applied in practice.

Reasons for concern

The absence of any acknowledgement on the part of the executive of its obligation to take action,or to press for the taking of action, against those who have provided it with evidence which hasbeen, or could reasonably be suspected of having been, obtained by torture.

Protection of the child against ill-treatments


The European Committee of Social Rights has concluded that, as corporal punishment within thefamily had not been prohibited and the defence of reasonable chastisement still existed, thesituation in the United Kingdom was not in conformity with Article 16 ESC. Mr L Francoisdissented from this conclusion on the basis that it failed to distinguish between acts which couldtruly endanger the physical integrity, dignity and psychological development of a child and acts asinnocent as a light slap on the hand or a smack on the bottom administered by parents, in thechild’s interests, to a young child who will not listen to reason and persists with dangerousbehaviour. Since the adoption of the conclusions the Act 2004, s had come into force andprecluded the use of reasonable chastisement as a defence to offences of (assault occasioningactual bodily harm, cruelty to persons under 16 and wounding and causing grievous bodily harm.It is expected that this will allow mild smacking but that any punishment causing visible bruising,grazes, scratches, minor swellings or cuts would lead to prosecution; Conclusions XVII-2. See also“Article 14”.

Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould ensure that the detention of minors for any period be authorised by a judicial authority, andbe subject to periodic judicial review.

The Committee of Ministers has adopted a resolution (ResDH(2005)112, 26 October 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (2nd sect.) ZW v. United Kingdom (Appl. no 34962/97) judgment of 29 July 2003 (Friendly Settlement),namely, fulfilment of an undertaking to pay the applicant £77,000 in respect of a complaint thatthe local authority had failed to protect the applicant’s welfare while she was in foster care and thatshe had had no legal remedy whereby she might express her complaints;


The Drugs Act 2005 inserts a new section 4A into the Misuse of Drugs Act 1971 and stipulates thecircumstances which a court must treat as aggravating factors in respect of the offence of supply ofa controlled drug. New section 4A(2) requires a court to treat either or both of two conditions -when a person supplies a controlled drug on or in the vicinity of school premises when they arebeing used by children and young people and within one hour of any such time and when a personcauses or permits a child or young person to deliver a controlled drug to a third person or todeliver a drug related consideration to himself or a third person in connection with the offence of


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supply of a controlled drug - as aggravating factors and, where either condition is met, to state thatthe offence is so aggravated.



Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould: address the problem of over-crowding in prisons through the construction of new detentionfacilities and greater investment in alternative sentences and non-custodial pre-trial supervision;improve the psychiatric support services in the adult prison estate; increase the capacity ofNational Health Service secure accommodation facilities so as to enable the transfer of alldetainees in need of full time psychiatric treatment; improve the educational and psychiatricsupport services in juvenile and young offender detention facilities; ensure that purposeful activitytargets in Young Offender Institutions are met; and, in Scotland, eradicate slopping out in alldetention facilities.


In response to Liberty’s request for police to investigate allegations that CIA flights takingsuspects to face torture have landed at United Kingdom airports, Greater Manchester Police ChiefConstable Michael Todd has confirmed that he will look into “extraordinary rendition” flights onbehalf of the Association of Chief Police Officers; press release, 19 December 2005.

Reasons for concern

The continuing problem of serious overcrowding in prisons.

Article 5. Prohibition of slavery and forced labor

Trafficking in human beings (in particular for sexual exploitation purposes)


Anti-Slavery International has expressed concern about the treatment of 19 women suspected ofbeing trafficked and rescued in a police raid in Birmingham. Those who were non-European Unioncitizens were held in a detention centre and none of them was referred to a specialist shelter,despite police suspecting they were trafficked. On 4 October, the Home Office announced that sixof the women would be removed the following day but subsequently their removal wastemporarily suspended. Anti-Slavery International has called on the United Kingdom to ratify theEuropean Convention on Action Against Trafficking in Human Beings; 5 October 2005.

Five Albanian men were sentenced in London on 1 December to a total of 63 years for traffickingwomen to the United Kingdom from Lithuania.

Reasons for concern

The treatment of women suspected of being victims of trafficking for the purpose of prostitution.


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Protection of the child (fight against child labour – especially with purposes of sexual exploitationor child pornography and fight against the sexual tourism involving children)


In a Individual Direct Request concerning Convention No. 182, Worst Forms of Child Labour,1999, submitted in 2005, the Committee of Experts on the Application of Conventions andRecommendations drew the Government's attention to the fact that, by virtue of Article 3(a) of theConvention, the sale and trafficking of children, including for labour exploitation, constituted oneof the worst forms of child labour and are therefore prohibited for children under 18 years of ageand expressed the hope that the proposed new law prohibiting the trafficking of persons for labourexploitation will soon be promulgated. The Committee took due note of the Government'sindication that a best practice guide on trafficking for immigration officers, police and otherspotentially dealing with trafficking is being developed. This guide will raise awareness of thedifference between trafficking and smuggling, and help those concerned to treat victims oftrafficking fairly. The Committee took due note of the adoption of the Sexual Offences Act, 2003which contains detailed provisions on the sexual exploitation of children. The Committee observedthat, according to section 48 of the Act, a person (A) commits an offence if: (a) he intentionallycauses or incites another person (B) to become a prostitute, or to be involved in pornography, inany part of the world; and (b) either: (i) B is under 18, and A does not reasonably believe that B is18 or over, or (ii) B is under 13. The Committee noted that similar wording is used in several otherprovisions such as section 49 (controlling a child prostitute or a child involved in pornography)and section 50 (arranging or facilitating child prostitution or pornography). It noted with concernthat a person who, for example, incites a child of 14 years to become a prostitute does not commitan offence in so far as he/she reasonably believes the child is 18 years old. It observed that onlychildren under 13 years of age are protected, with certainty, from sexual exploitation. TheCommittee drew the Government's attention to the fact that, by virtue of Article 3(b) of theConvention the use, procuring or offering of a child for prostitution, or for the production ofpornography or for pornographic performances is considered to be one of the worst forms of childlabour, and that under the terms of Article 1 of the Convention, each member State which ratifiesthis Convention shall take immediate and effective measures to secure the prohibition andelimination of the worst forms of child labour as a matter of urgency. It also drew theGovernment's attention to the difficulty to ascertain the exact age of boys and girls. TheCommittee asked the Government to provide information on the meaning of the term "reasonablybelieves" and relevant court decisions in this regard. The Committee encouraged the Governmentto extend the scope of application of section 4(1) of the Children and Young Persons Act, 1933 –which prohibits anyone from causing or allowing a person under 16 to be used for begging - tochildren under 18. The Committee noted that the Government had initiated "Project Reflex" whichis a practical multi-agency taskforce on organized immigration crime which includes peopletrafficking. It brings together all the key agencies involved in combating the problem, includingthe immigration service, the national criminal intelligence service, the security and intelligenceagencies and key police forces. Under this project, a ground-breaking joint operational unitcomprising the national crime squad and immigration services officers was set up. Its three maintasks are to develop intelligence leads for the operational arm, to carry out surveillance and toprovide legal assistance to investigations with a view to future prosecutions. The Committeerequested the Government to provide information on the achievements and impact of ProjectReflex, especially with regard to child trafficking. The Committee took due note of theGovernment's indication, in its report, on the applicable penalties, including penal sanctions forperson contravening the legal provisions regarding the worst forms of child labour. TheCommittee observed, for instance, that according to section 145 of the Nationality, Asylum andImmigration Act, 2002 a person who is convicted for the trafficking of a child under 18 years ofage for the purpose of controlling him/her in prostitution is liable to imprisonment for a term not


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exceeding 14 years, or/and an unlimited fine. Section 146(4) further states that when the offenderis sentenced to imprisonment of at least 12 months, he/she will be disqualified from working withchildren in the future, whether in a paid or unpaid occupation. The Committee also noted that aperson who pays for sexual services with a child of under 18 years of age, is liable toimprisonment for a term not exceeding 14 years (section 47(4) of the Sexual Offences Act, 2003).If the victim is under 13 years of age, the offender is then liable to life imprisonment (section47(3) of the Sexual Offences Act). A person causing or inciting a child to become a prostitute or tobe involved in pornography is liable to imprisonment for a term not exceeding 14 years (section48(2)(b) of the Sexual Offences Act). The Committee further noted that an employer whocontravenes the provisions on the employment of children shall be liable to a fine not exceeding£1,000 (section 21 of the Children and Young Person's Act 1933, as amended). The Committeenoted that the Government had published the guidance on interagency working to safeguard andpromote the welfare of children, which was reinforced and expanded by the "Safeguardingchildren involved in prostitution guidance - Supplementary guidance on working together tosafeguard children" in 2000. The Committee also took due note of the information provided by theGovernment concerning the National Plan for Safeguarding Children From Commercial SexualExploitation published in September 2001. The guidance includes paragraphs on childpornography and the Internet, and children involved in prostitution. It aims at reinforcingcooperation between all agencies and professionals to work together to: (a) recognize the problemof the sexual exploitation of children; (b) treat the children involved primarily as victims of abuse;(c) safeguard children and promote their welfare; (d) work together to prevent abuse and providechildren with opportunities and strategies to exit from prostitution; (e) investigate and prosecutethose who coerce, exploit and abuse children through prostitution. The National Plan also providesfor the establishment of Area Child Protection Committees (ACPCs). ACPCs bring togetherrelevant statutory and voluntary bodies to consider both strategic planning and coordinatingservices to protect children from abuse, especially commercial sexual exploitation. The Committeetook due note that the Department of Health had commissioned a short-term project to providebasic quantitative data to measure the extent to which the guidance is being implementedthroughout the United Kingdom. However, the Committee observed that the data are not precisewith regard to the number of children involved in prostitution. It solely shows that ACPCs areaware of children engaged in prostitution. The Committee asked the Government to continue toprovide information on the achievements of the National Plan for Safeguarding Children FromCommercial Sexual Exploitation, and its impact with regard to removing children fromcommercial sexual exploitation and providing for their rehabilitation and social integration. TheCommittee noted the Government's indication that the needs of children involved in drugtrafficking are taken into account in the Home Office general guidance to police in respect ofaction to disrupt supply. However, no specific guidance has been produced to date to encouragepolice to proactively identify children involved in trafficking. The Committee also noted theGovernment's statement that the Home Office will ensure during 2002-03 that the support materialfor police forces includes specific reference regarding the need to work to reduce the numbers ofchildren involved in trafficking through arrest and publicity of the risks involved in trafficking.The Committee asked the Government to provide information on the concrete measures taken toreduce the numbers of children involved in trafficking and their impact. The Committee noted thatthe National Plan for Safeguarding Children From Commercial Sexual Exploitation indicates thatappropriate responses to the needs of particularly vulnerable groups shall be identified. Thefollowing are considered to be vulnerable groups: children in public care, children who gomissing, refugees and asylum-seeking children and children involved in the entertainment andsports industries. The Committee observed that the Government financially supports voluntaryorganizations that provide services and support for young people at risk of becoming involved inprostitution. The Committee requested the Government to indicate the time-bound measures takenor envisaged to protect these children from commercial sexual exploitation. The Committeeobserved that the Government increased the resources available to the police to investigatecomputer pornography and established a Task Force on Child Protection on the Internet. The TaskForce is considering the adequacy of the criminal law to protect children on the Internet,information and public awareness. The Committee requests the Government to provide


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information on the findings of the Task Force and the impact of its actions. The Committee notedthe Government's indication that the Home Office Crime Reduction programme is funding fourprojects concerning children and young persons who are either at risk of or actively engaged in sexwork and sexual exploitation. The Committee asked the Government to provide examples ofconcrete measures taken pursuant to the Home Office Crime Reduction programme and the resultsattained. The Committee noted that the United Kingdom is a member of Interpol which helpscooperation between countries in the different regions especially in the fight against trafficking ofchildren. It also observed that the Government signed in 1992 the United Nations Convention onthe Rights of the Child; in 2000, the Optional Protocol to the Convention on the Rights of theChild on the Sale of Children, Child Prostitution, and Child Pornography; in 2003, the OptionalProtocol to the Convention on the Rights of the Child on the Involvement of Children in ArmedConflict; the United Nations Convention for Suppression of the Traffic in Persons and theExploitation of the Prostitution of Others. The Committee further observed that the Governmentprovides substantial financial and technical assistance to ILO/IPEC and supports otherinternational agencies such as UNICEF. It noted with interest that the Government works withother governments and non-governmental organizations to address the problem of child labour.Thus, the Department for International Development provided approximately £3 million for aprogramme in the Greater Mekong region, covering parts of Cambodia, China, Laos, Thailand andViet Nam. This programme seeks to address the prevention, protection and rehabilitation oftrafficked women and children. It also observes that the United Kingdom is working in India withthe Government and the ILO on a state-based programme for the elimination of child labour inAndhra Pradesh, and on a national child labour survey. In Bangladesh, the United Kingdom issupporting primary education programmes which target hard to reach children engaged inhazardous labour and which plan to support the design of the Time-Bound Programme for theElimination of Child Labour. In Pakistan, support has been provided for the programme to protectthe rights and livelihoods of working children in football stitching and other industries. TheCommittee noted that the Government of the United Kingdom and the Philippines signed, in 1997,a Memorandum of Understanding to cooperate to combat the sexual exploitation of children. TheCommittee asked the Government to provide information on the impact of these technicalcooperation programmes.The Committee observed that the Government is contributing to the EUSTOP Programme, which provides support to member State organizations responsible for actionagainst the trade in human beings and the sexual exploitation of children. The Committee furthernoted that the Government participated in the establishment of Asia-Europe Meeting (ASEM)resource centre. This centre aims at providing information about combating child sexualexploitation such as the legislation in force in ASEM countries, best practices in theimplementation of policies and guidelines on child protection, and contacts in each country forpolice, prosecution, and immigration. The Committee noted the Government's and TUC'sindications that there is currently no accurate, reliable data in existence within the United Kingdomregarding the trafficking of children, the number of children involved in prostitution or inhazardous occupations in the United Kingdom. Thus, the Government estimates that between 140and 1,400 women and children are trafficked each year into the United Kingdom for the purposesof sexual exploitation. It also noted that due to the hidden nature of the act it is difficult to havesuch data. The Committee nevertheless strongly encouraged the Government to collate reliablestatistics to establish the number, age, origins or destination of trafficked children, child prostitutesand children involved in the worst forms of child labour. Such statistics would be helpful to launchappropriate programmes of action.

Positive aspects

The substantial financial and technical assistance towards efforts to tackle the trafficking ofchildren that originates in Asian countries.

Reasons for concern


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The absence of any accurate, reliable data regarding the trafficking of children, the number ofchildren involved in prostitution or in hazardous occupation.

XXXil manqué un sous-titre souligné


A report from the Trade Union Congress on migrant workers in the United Kingdom shows manymigrant workers, regardless of their immigration status, being forced to work very long hours,being paid below the minimum wage and enduring dangerous working conditions in a range ofsectors including agriculture, construction, hospitality, food processing, contract cleaning, nursingand care homes. It cites examples of workers being threatened with deportation if theycomplained, the retention of their passports by employers preventing them from changing jobs, theuse of bonded labour where employers held workers over a debt, and intimidation and use ofviolence towards workers with little English and limited knowledge of their rights. The reporturges that the same rights apply to migrant workers as other workers in the United Kingdom andthat the Government cracks down on employers who break employment law. It states that is vitalthat all workers have the right to organise and that all migrants are protected from abuse regardlessof their status; Forced Labour and Migration in the UK, February 2005.

Reasons for concern

The apparent inadequacy of the protection for migrant workers against exploitation


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CHAPTER II. FREEDOMS

Article 6. Right to liberty and security

Pre-trial detention.


The Drugs Act 2005 includes a provision allowing a court to remand a prisoner to the custody of apolice officer where it is suspected that the prisoner has swallowed drugs to conceal evidence andavoid prosecution. Currently the police may detain a person in police detention under the Policeand Criminal Evidence Act 1984 for a maximum of 96 hours prior to charge but this is notnecessarily a sufficient period of time for swallowed evidence to be recovered.

Detention following a criminal conviction (including the alternatives to the deprivation of libertyand the conditions for the access to release on parole)


A violation of Article 5(4) ECHR was found in Eur.Ct.H.R. (4th sect.) Blackstock v. UnitedKingdom (Appl. no 59512/00) judgment of 21 June 2005 in respect of the lapse of time (22months) between the reviews concerning his continued detention as a discretionary life prisonerand thus the delay in changing his security classification as part of the process to be followedtowards open conditions and planned release prior to release. The Court further held that there hadbeen a violation of Article 5(5) as there was no possibility of obtaining compensation at therelevant time in domestic law in respect of the violation of Article 5(4).


In granting applications for judicial review of the Parole Board’s refusal without an oral hearing todirect the release of two determinate sentence prisoners following the revocation of their releaseon licence for breach of the conditions on that licence, it was held in R (on the application ofSmith) v. Parole Board [2005] UKHL 1, [2005] 1 All ER 755 that the Board, being empowered (a)to examine whether circumstances had arisen sufficient in law to justify further detention of adeterminate sentence prisoner released on licence and, if so, (b) to decide whether the protection ofthe public called for the further detention of the individual detainee, would in its review onlysatisfy the requirements of Article 5(4) ECHR if it was conducted in a manner that met therequirements of procedural fairness. In each of the instant cases the Board had breached its dutyof procedural fairness by failing to offer the prisoners an oral hearing of his representations againstrevocation of his licence and was accordingly in breach of Article 5(4).

However, it was subsequently held (Lords Bingham and Steyn dissenting) in Roberts v. ParoleBoard [2005] UKHL 45 that the Parole Board had express and implied power to withhold materialrelevant to a prisoner’s parole review from his legal representatives and to disclose that material toa specially appointed advocate, who represents the prisoner at a closed hearing before the Board -as occurred in the present case on the grounds that the safety of the source of the information orevidence would be at risk if the material were disclosed - provided that in all the circumstances ofthe particular case significant injustice will not be done to the prisoner. It was considered that ifthe Board came to a decision in favour of the prisoner or revealed at least the gist of the caseagainst the offender, then there might be no injustice to the prisoner but, if that was not whathappened at the end of the proceedings, the Board would have to consider whether there had beencompliance with Article 5(4) ECHR and the minimum requirements of fairness which were to be


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implied from the nature of the Board’s duty under the Criminal Justice Act 1991. If there had notbeen compliance then either necessary steps had to be taken to ensure compliance or the non-disclosed material could not be relied on.

Deprivation of liberty for juvenile offenders


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould: bring the age of criminal responsibility in the different jurisdictions of the UnitedKingdom in line with European norms; and provide greater investment in alternative sentences forjuvenile and young offenders. He also recommended that the United Kingdom should raise to 16the age at which children in breach of terms of Anti-Social Behaviour Orders may be sentenced tocustody. Moreover the European Committee of Social Rights has concluded that, as the age ofcriminal responsibility – 10 in England, Northern Ireland, Wales and the Isle of Man and 8 inScotland - was manifestly too low, the situation in the United Kingdom was not in conformity withArticle 17 ESC; Conclusions XVII-2.


As part of its camp to end the deaths of children in penal custody and to end the unnecessary useof penal custody for children (see also “Article 2”), the Howard League for Penal Reform hasrevealed that: the number of children in penal custody has risen from 3,130 in October 2004 to3,423 in September 2005, an increase of 10% in a year; the majority of children are detained inprisons with 2,933 in Prison Service custody, 245 in local authority secure children's homes, and245 held in secure training centres; the number of children remanded into Prison Service custodyhas increased by 26%, from 403 in October 2004 to 507; the number of girls in penal custody hasincreased by 35% from 198 in October 2004 to 267 in September 2005; the number of girls held inprisons has increased by 31% from 85 to 11; and the number of boys held in prisons has increasedfrom 2,589 to 2,822 in a year (press release, 26 September 2005).

Following the conclusion in the Government’s review of international human rights instrumentsthat the reservation to the Convention on the Rights of the Child (also reflected in a reservation tothe International Covenant on Civil and Political Rights) allowing for children to be detainedalongside adults where there is a lack of suitable accommodation in separate facilities shouldremain in force, the Joint Select Committee on Human Rights concluded that the Governmentshould establish a timetable for full provision of separate accommodation for children, andwithdrawal of the reservation; Review of International Human Rights Instruments, HL 99/HC 264,31 March 2005.

Reasons for concern

The very low age of criminal responsibility and the high number of children in penal custody.

Deprivation of liberty for foreigners (in order to prevent their unauthorised entry on the territory,with a view to their removal, including their extradition)


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdom


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should: provide for the automatic judicial review of the continuing administrative detention offoreigners under Immigration Act powers beyond three months; ensure that adequate legalrepresentation is provided in such cases; ensure the public availability of comprehensive statisticsrelating to the detention of minors under Immigration Act powers; increase the use of alternativeforms of supervision of families with children pending deportation; and ensure that the detentionof minors for any period be authorised by a judicial authority, and subject to periodic judicialreview.


In R (on the application of Khadir) v. Secretary of State for the Home Department [2005] UKHL39, [2005] 4 All ER 114 it was held that paragraph 16 of Schedule 2 to the Immigration Act 1971authorised detention so long as the Secretary of State remained intent upon removing a personliable to be removed and there was some prospect of achieving that, with the word ‘pending’meaning no more than ‘until’. The fact that it might become unreasonable actually to detain theperson pending a long delayed removal did not mean that the power had lapsed; the personremained ‘liable to detention’ and the ameliorating possibility of his or her temporary admission inlieu of detention then arose under paragraph 21 of Schedule 2.



Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomprovide for the judicial authorisation of all control orders (see below) and ensure that the essentialcontent of the right to a fair trial under Article 6 ECHR is guaranteed where necessary.

No violation of Article 5(1) ECHR was found in Eur.Ct.H.R. (4th sect.) Kolanis v. the UnitedKingdom (Appl. no 517/02) judgment of 21 June 2005 in respect of the compulsory detention ofthe applicant on account of a mental illness because treatment or supervision necessary to protecther own health and the safety of the community was not available. As, in the situation underconsideration a failure by the local authority to use "best efforts" or any breach of duty by apsychiatrist in refusing care in the community would be amenable to judicial review, te Court wasnot persuaded that local authorities or doctors could wilfully or arbitrarily block the discharge ofpatients into the community without proper grounds or excuse, or that that was what occurred inthe applicant’s case. However, as for over a year, the applicant was unable to have the issuesarising from supervening events as they affected her continued detention examined by a court andthat the lapse of 12 months before it was reviewed on the Secretary of State’s referral could not beregarded as sufficiently prompt to remedy that defect, the Court held that there had been aviolation of Article 5(4). Furthermore, in the light of its finding of a breach of Article 5(4) andnoting that the United Kingdom Government had accepted that there was no enforceable right tocompensation before the entry into force of the Human Rights Act 1998, the Court further heldthat there had been a violation of Article 5(5) but that no separate issues arose under Article 13.


The Prevention of Terrorism Act 2005 provides for the making of 'control orders' imposingobligations on individuals suspected of being involved in terrorism-related activity. 'Involvementin terrorism-related activity' for the purposes of the Act as: (a) the commission, preparation orinstigation of acts of terrorism; (b) conduct which facilitates or is intended to facilitate thecommission, preparation or instigation of such acts; (c) conduct which gives encouragement or isintended to give encouragement to the commission, preparation or instigation of such acts;


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(d) conduct which gives support or assistance to those known or believed to be involved interrorism-related activity; and applies regardless of whether these relate to specific acts or toterrorism in general. These are preventative orders which are designed to restrict or prevent thefurther involvement by individuals in such activity. A control order may impose any obligationsnecessary for purposes connected with preventing or restricting an individual's further involvementin terrorism-related activity. The intention is that each order will be tailored to the particular riskposed by the individual concerned. Obligations that may be imposed include prohibitions on thepossession or use of certain items, restrictions on movement to or within certain areas, restrictionson communications and associations, and requirements as to place of abode. It will be possible tomake control orders against any individuals suspected of involvement in terrorism-related activity,irrespective of nationality, or terrorist cause. The Secretary of State is required to consult the chiefpolice officer of the relevant police force about the evidence relating to the individual before hemakes a control order to see if there is evidence available that could realistically be used for thepurposes of a prosecution of the individual for an offence relating to terrorism. He is also requiredto inform that chief police officer when he has made a control order and the chief police officer isrequired to keep the investigation of the individual's conduct under review for the duration of thecontrol order to see if prosecution for a terrorism-related offence becomes possible. Control ordersthat do not involve derogating from Article 5 ECHR, called 'non-derogating control orders', will bemade by the Secretary of State. The Secretary of State must seek permission from the court tomake a non-derogating control order. However, in cases of urgency, the Secretary of State canmake an order without first seeking the permission of the court but he must refer it immediately tothe court for confirmation. Control orders that do involve derogating from Article 5 ECHR will bemade by the court itself on application from the Secretary of State. Such control orders are called'derogating control orders'. All control orders will be subject to full hearings by the High Court orCourt of Session Control order, involving the hearing of evidence in open and closed session withSpecial Advocates representing the interests of the individuals concerned in the latter. Rules maybe made allowing the controlled person, or the Secretary of State, to apply for an order requiringthe anonymity of the controlled person, even before court proceedings have begun. The Actamends the Regulation of Investigatory Powers Act 2000, s 18 to allow for the admission ofinterception evidence in control order proceedings or any proceedings arising from suchproceedings. There will be a right of appeal on a point of law from a decision of the High Court orCourt of Session. At a full hearing of a non-derogating order, the Court must consider whether anyof the following decisions of the Secretary of State were flawed: his decision that there arereasonable grounds for suspecting that the person was involved in terrorism-related activity; hisdecision that a control order is necessary for purposes connected with protecting members of thepublic from the risk of terrorism; and his decisions on the imposition of each of the obligationsimposed by the order. The civil standard of proof will apply to the question of involvement interrorism-related activity in hearings relating to derogating control orders. The tests which thecourt must consider when deciding if a derogating control order can be made are that it mustappear to the court that: (a) there is material which (if not disproved) is capable of being relied onby the court as establishing that the individual is or has been involved in terrorism-related activity;(b) there are reasonable grounds for believing that the obligations in the control order arenecessary for purposes connected with protecting members of the public from a risk of terrorism;(c) the risk in question arises out of or is associated with a public emergency in respect of whichthere is a designated derogation from all or part of Article 5 ECHR; and (d) that the obligations inthe control order are of a description set out in the designation order. In full hearings on controlorders, the court can quash the control order, modify the obligations which it imposes or, in thecase of non-derogating control orders, give directions to the Secretary of State to revoke or modifythe control order. A non-derogating control order will last for 12 months and may be renewed,while a derogating control order will last six months, unless it ceases to have effect but can alsocontinue for more than six months if the court renews it. There is provision in the Act for the arrestand detention of an individual in respect of whom the Secretary of State is seeking a derogatingcontrol order. He may be arrested and detained for 48 hours in the first instance, with thepossibility of the court extending the detention for a further 48 hours. A constable may arrestsomeone under this section if the Secretary of State has applied to the court for a derogating


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control order to be made and the constable considers that the individual's arrest and detention arenecessary to ensure the individual is able to receive notice of the order when it is made. Theconstable must take the arrested individual to an appropriate "designated place" If it considers itnecessary to ensure that the individual is available to receive any notice, the court may during thefirst 48 hours of such detention, extend the period of detention for up to a further 48 hours. Thepower of detention shall cease once a person becomes bound by a derogating control order (ieonce it has been served) or once the court dismisses the application from the Secretary of State.Breach of an obligation imposed by a control order, without reasonable excuse, will be a criminaloffence punishable, following conviction on indictment, with a prison sentence of up to 5 years, ora fine, or both; or, following summary conviction, to a prison sentence of up to 12 months (or 6months in Scotland or Northern Ireland), or a fine, or both. There is provision for an independentreview of the operation of the Act, with the first review to be carried out after the Act has been inoperation for nine months and subsequent reviews to be carried out annually, and for reports bythe Secretary of State to Parliament every three months on his exercise of the control order powersduring that period. Where a derogation is in place which has been approved by Parliament, theneed for further annual Parliamentary approval of the continuing need to rely on the derogation tomake derogating control orders. Non-derogating control orders are currently being used in respectof nine persons. All eleven persons formerly detained under the powers in the the Anti-terrorism,Crime and Security Act 2001 were initially made subject to control orders but nine of them arenow being held pursuant to deprtation orders while arrangements are made to obtain guaranteesagainst them being treated in violation of Article 3 ECHR (see “Article 19”). The restrictions inthe control orders in force invole an eighteen-hour curfew, limitations of visitors, meetings tothose persons to be approved by the Home Office, no cellular communication or internet use and ageographical restriction on travel. They have been described as not falling far short of house arrestand as inhibiting normal life considerably (First Report of the Independent Reviewer Pursuant toSection 14(3) of the Prevention of Terrorism Act 2005, February 2006). It is likely that the need touse control orders and the previous use of detention under the 2001 Act is a consequence of the barin section 17 of the Regulation of Investigatory Powers Act 2000 on the use of intercept evidencein criminal proceedings. The provisions in the 2001 Act have been repealed but, unlike them, thenew powers are not limited to use against non-nationals.

The Joint Committee on Human Rights considered that, in the light of the Home Secretary'sannouncement that there was currently no need to derogate from Article 5 ECHR because therewere no individuals in respect of whom deprivation of liberty could be said to be strictly required,there would seem to be no need for the Government to take in this legislation the power to makederogating control orders depriving individuals of their liberty by, for example, placing themunder house arrest, ie, taking much wider powers than were at present strictly required; Preventionof Terrorism Bill: Preliminary Report, HL 61/HC 389, 25 February 25.

The House of Commons Constitutional Affairs Committee has concluded that there are a numberof improvements which could be made to improve the fairness of the Special Advocate system asimplemented in the Prevention of Terrorism Act 2005. Among these would be the establishment ofan Office of the Special Advocates, to ensure that the Special Advocates get appropriate expertsupport and facilities. It further believes that additional steps should be taken to ensure that SpecialAdvocates are better able to communicate with the appellant, with special arrangements for doingso after they have seen cleared material, and that appellants are offered, where practical, a choiceof Special Advocate from a security-cleared pool; The operation of the Special ImmigrationCommission, HC 323 – I, 3 April 2005.

The Serious Organised Crime and Police Act 2005 has amended the powers of arrest available to aconstable under the Police and Criminal Evidence Act 1984, which were based on the applicationof the concept of seriousness attached to the offence. The exercise of arrest powers will now besubject to a test of necessity based around the nature and circumstances of the offence and theinterests of the criminal justice system. An arrest will only be justified if the constable believes it


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is necessary for any of the reasons set out in the new section 24(5) of PACE. The exercise of thecitizen's power of arrest will be limited to indictable offences.

The power under the Mental Health Act 1983, s 2, whereby a person could be admitted anddetained for assessment on the ground that he was suffering from a mental disorder of a naturewarranting such detention and that he needed to be detained in the interests of the health and safetyof others, was held in R (on the application of MH) v. Secretary of State for Health [2005] UKHL60 not to be incompatible with Article 5(4) ECHR simply because in that it was not attended byprovision for the reference to a court of every case of someone detained where that person wasincapable of exercising the right to make an application to a mental health review tribunal on hisown initiative. Hospital managers were obliged under section 132 to take such steps as werepracticable to ensure that the patient understood the effect of the provisions under which he wasdetained and the rights of applying to a tribunal. Moreover, although an application had to be inwriting, it could be signed by anyone authorised by the patient to do so, provided the patient hadsufficient capacity to give authority, and the reference could, as in the present case, be stimulatedby a relative. Furthermore, although the operation of section 29(4) of the 1983 Act - whichprovided for the automatic extension of the 28-day detention period under section 2 where anauthorised social worker applied to the county court for removal of the person’s nearest relativefrom performance of his functions if, inter alia, the nearest relative was unreasonably objecting tothe making of an application for admission for treatment or a guadianship application - couldprove incompatible with Article 5(4) ECHR if the county court proceedings dragged on and thepatient was detained indefinitely, there were means of ensuring that it did, namely, a referenceunder section 67 by the secretary of state to a tribunal or, if he failed to do so, judicial review toensure he acted compatibly with the patient’s ECHR rights.

The maintenance of a cordon around persons who had taken part in a demonstration, whoseorganisers had deliberately given no advance notice to the police that it would happen, under apolice plan to release them once the cordon had become absolute in a direction away from thewell-known shops and commercial premises that were the target of the protest was held in Austinv. Metropolitan Police Commissioner [2005] EWHC 480 (QB) not to have amounted to a violationof Article 5(1) ECHR where it had lasted for seven or so hours rather than the four originallyexpected on account of the violent behaviour of those within the crowd and of other groupsconverging on the same area. The court considered that the deprivation of liberty was justified onthe basis that the claimants appeared to be about to commit a breach of the peace and in all thecircumstances the police had not acted unreasonably.

In dismissing a claim for judicial review by a dual British/Iraqi citizen of the Secretary of State’sdecision to detain him in a divisional detention facility in Basra, Iraq without charging him and therefusal of the Secretary of State to transfer him from Iraq to the United Kingdom, it was held in R(Al-Jedda) v. Secretary of State for Defence [2005] EWHC 1809 (Admin) that, as obligationsunder a United Nations Security Council resolution overrode obligations under the ECHR,resolution 1546 concerning the maintenance of security in Iraq overrode the extra-territorialapplication of the Human Rights Act 1998, giving effect to the ECHR in United Kingdom law.The United Kingdom was thus entitled to disapply Article 5 ECHR to the extent permitted by thatresolution. Furthermore there was no obligation upon the Secretary of State to repatriate theclaimant to the United Kingdom since there was no power to do so under the resolution but only apower to intern him in Iraq.

The Serious Organised Crime and Police Act 2005 provides for a new offence of failing to obey apolice direction to leave an exclusion area. It applies to those offenders, both adults and juveniles,who have had an exclusion requirement imposed as part of a community sentence, a suspendedsentence order or a licence condition on release from custody. The offence carries the power ofarrest without warrant. The maximum penalty is a term of imprisonment not exceeding 51 weeksor a fine not exceeding level 4 on the standard scale, or both. A constable may direct a person to


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leave a place where he has reasonable grounds to believe that the person is in an exclusion area ata time when he is prohibited from entering that area under the requirements of his sentence orlicence condition.

Reasons for concern

The extent of the restrictions imposed in control orders made under the Prevention of TerrorismAct 2005.

The adequacy of the arrangements for communication between a Special Advocates and anappellant after they have seen cleared material.

The conclusion in Al-Jedda that a United Nations Security Resolution was to be regarded asdisplacing the requirements of ECHR Article 5 rather being a possible authority for deprivation ofliberty to be used consistently with them.

Article 7. Respect for private and family life

Criminal investigations and the use of special or particular methods of inquiry or research


The Committee of Ministers has adopted a resolution (ResDH(2005)68, 18 July 2005) with respectto the measures taken to ensure compliance with the judgments in Eur.Ct.H.R. (3rd sect.) Khan v.United Kingdom (Appl. no 35394/97) judgment of 12 May 2000, Eur.Ct.H.R. (3rd sect.) P G and JH v. United Kingdom (Appl. no 44787/98) judgment of 25 September 2001, Eur.Ct.H.R. (4th sect.)Armstrong v. United Kingdom (Appl. no 48521/99) judgment of 16 July 2002, Eur.Ct.H.R. (4th

sect.) Hewitson v. United Kingdom (Appl. no 50015/99) judgment of 27 May 2003 and Eur.Ct.H.R.(3rd sect.) Chalkey v. United Kingdom (Appl. no 63831/00, 12 June 2003 and of the decision of theCommittee of Ministers of 10 July 1998 under former Article 32 in Govell v. United Kingdom(Appl. no 27237/95), in which violations of Article 8 ECHR had been found in respect of the useof covert listening devices in residences or the workplace and in which, apart from Hewitson,violations of Article 13 ECHR had also been found due to the lack of effective remedies making itpossible to challenge the interference with the private life at the domestic level. Following thefinding of violations in the Govell case, on 22 February 1999, the relevant part of the Police Act1997 (Part III) came into force, along with the Code of Practice on Intrusive Surveillance Work,explaining in more detail how the provisions of the legislation should be carried out. On 25September 2000, the relevant part of the Regulation of Investigation Powers Act 2000 (Part II)also came into force. The installation of covert listening devices in residential premises and placesof work is now regulated by these two statutory instruments and the Code of Practice, a systemwhich is both legally binding and publicly accessible. As regards the violation of Article 13ECHR, Part IV of the Regulation of Investigation Powers Act 2000 provides for the independentoversight of police powers by a Chief Surveillance Commissioner and establishes an independenttribunal to consider complaints concerning the use of surveillance powers. In addition, followingthe entry into force of the Human Rights Act in 2000, violations of the Convention may beconsidered unlawful under United Kingdom law and challenged before domestic courts.

The Committee of Ministers has adopted a resolution (ResDH(2005)100, 26 October 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (3rd sect.)Perry v. United Kingdom (Appl. no 53760/00) judgment of 17 July 2003, in whch it had been heldthat there had been a violation of Article 8 ECHR in respect of a complaint about the applicanthaving been videotaped without his knowledge by the police for identification purposes in the


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context of criminal proceedings brought against him in 1997. The United Kingdom Governmenthad drawn the Committee's attention to the fact that, on account of the specific circumstances ofthe case, new similar violations of the Convention could be avoided in the future by informing theauthorities concerned of the requirements of the Convention: copies of the judgment hadaccordingly been sent out together with a circular to Chief Constables, Heads of CriminalInvestigation Departments and human rights champions appointed within the police force. Thiscircular draws attention to the standards existing under the relevant Code of Practice and to theconsequences of a failure by police officers dealing with video film identification to apply thesestandards; in addition, the Court's judgment had been published in the European Human RightsReport under reference (2004)39 EHRR 3.


In upholding the dismissal of applications for judicial review of authorisations relating to thewhole of the Metropolitan district under the Terrorism Act 2000, ss 44 and 45, capable of beinggiven where it was considered expedient for the purpose of preventing acts of terrorism andallowing police officers to stop and search pedestrians, drivers and passengers without anynecessity for reasonable grounds for suspicion, and given on a rolling basis for 28 dayy periods, itwas held in R (on the application of Gillan) v. Metropolitan Police Commissioner [2004] EWCACiv 1067. [2005] 1 All ER 970 that it was entirely consistent with the framework of the legislationthat a power of this sort should be exercised when a senior police officer considered that it wasadvantageous to exercise the power for the prevention of acts of terrorism and so interpreted theexistence of sections 44 and 45 could not conflict with the ECHR. Furthermore the court shouldnot readily interfere with the judgment of the authorities as to the action that was necessary butwhat action was or was not proportionate was an issue for the judgment of the court and it wouldusually place in the scales the authorities’ evaluation of the action needed to avoid a terroristincident as against the court’s assessment of the effect on a member of the public. The stoppingand searching of the claimants was justifiable under art 5(1)(b) as detention in order to secure thefulfilment of an objective prescribed by law but, while Article 8 ECHR applied to the stop andsearch process, Articles 10 and 11 ECHR could not be invoked as the limited powers of detentioncreated by the 2000 Act did not threaten either freedom of expression or assembly . Moreover,given the history of global and national incidents of terrorism, the authorisation and confirmationof a random power of search could not, as a matter of general principle, be said to be anunacceptable intrusion that was neither necessary nor proportionate, into the human rights of thosewho were searched in the absence of some identified specific threat. The rolling programme ofauthorisations was considered to do no more than enable the commanders in a particular area tohave the powers available when operationally required without going back to the Secretary ofState for a particular use. Although the police commander had been entitled to decide that thesection 44 powers should be used in connection with the arms fair where the claimants, a would-bedemonstrator and journalist, had been stopped and searched, particularly given the fair’s nature, itslocation and the protest taking place at it, the commissioner had not discharged the onus ofshowing that the interference with them was lawful.

The Drugs Act 2005 amends section 55 of the Police and Criminal Evidence Act 1984, whichprovides for an intimate search of a person where it is suspected that the person may have a ClassA drug concealed on him, providing that such a search may only be undertaken where the personto be searched has consented in writing and requires that the person be informed that the searchhas been authorised and the grounds on which it has been authorised. An authorisation for thesearch, grounds for that authorisation and consent of the person to be searched must be recorded inthe custody record. Provision is also made that appropriate inferences may be drawn by a court orjury where a person refuses without good cause to consent to an intimate search. The 2005 Actalso inserts a new section 55A into the 1984 Act, enabling a police officer of at least the rank ofinspector to authorise an x-ray or ultrasound scan (or both) of a person suspected of swallowing aClass A drug which he had in his possession with intent to supply or export unlawfully, where the


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person has been arrested for an offence and is in police detention. An x-ray may not be taken or anultrasound scan undertaken without the suspect's consent which must be in writing and the x-ray orultrasound scan may only be taken at a hospital, registered medical practitioner's surgery or otherplace used for medical purposes and only by a registered medical practitioner or nurse. Anauthorisation for the x-ray or ultrasound, grounds for that authorisation and consent of the personto be searched is recorded in the custody record as soon as practicable after the x-ray has beentaken or ultrasound carried out. Provision is also made that appropriate inferences may be drawnby a court or jury where a person refuses without good cause to consent to an x-ray or ultrasoundscan. In addition the Drugs Act 2005 amends the 1984 Act so as to allow for the introduction ofdrug testing for a specified Class A drug of persons aged 18 and over after arrest. This powerarises where the person has been arrested for a "trigger" offence or for any offence where a policeofficer of at least the rank of inspector has reason to believe the misuse of such a drug contributedto that offence and authorises the test.

The Serious Organised Crime and Police Act 2005 has amended the definitions of both non-intimate and intimate samples to make it clear that swabs of the coronal sulcus, shaft or glans ofthe penis from a male suspect and also perineum or vulval swabs and swabs from matted pubichair from a victim or female suspect are intimate samples with the result that such a swab can onlybe taken with consent.

The Serious Organised Crime and Police Act 2005 has also introduced a new type of warrantknown as an "all premises warrant". A constable will be able to apply for this type of warrantwhen it is necessary to search all premises occupied or controlled by an individual, but it is notreasonably practicable to specify all such premises at the time of applying for the warrant. Thewarrant will allow access to all premises occupied or controlled by that person, both those whichare specified on the application, and those which are not. It will still be possible to obtain a warrantwhich relates to one set of premises, now known as a "specific premises warrant". In the case of an"all premises warrant" any entry into premises which have not been specified in the warrant to beauthorised in writing by an officer of at least the rank of inspector.



The Committee of Ministers has adopted a resolution (ResDH(2005)83, 18 July 2005) with respectto the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (4th sect.) Brown v.United Kingdom (Appl. no 52770/99) judgment of 29 July 2003 (Friendly Settlement), namely,fulfilment of an undertaking to pay the applicant £52,500 in respect of a complaints relating to theinvestigation into the applicant's sexual orientation and his discharge from the Royal Air Forcepursuant to the Ministry of Defence's policy, at that time, against homosexuals in the armed forces(which was lifted as from 12 January 2000).

The Committee of Ministers has adopted a resolution (ResDH(2005)99, 26 October 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (4th sect.) BB v. United Kingdom (Appl. no 53760/00) judgment of 10 February 2004) in which a violation ofArticle 14 ECHR in conjunction with Article 8 ECHR was found in respect of a complaint aboutthe applicant having suffered discrimination on the ground of his sexual orientation on account ofhis indictment in 1993 of committing homosexual acts with a minor on the basis of legislativeprovisions fixing different ages of consent for heterosexual and homosexual acts (sixteen andeighteen years respectively). As noted in the judgment (paragraph 19), the Sexual Offences(Amendment) Act 2000, the relevant part of which came into force on 8 January 2001, hadreduced the age of consent for homosexual acts to the same age as the age of consent forheterosexual acts, and the United Kingdom government had also indicated that the Court'sjudgment had been sent out to the authorities directly concerned.


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Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould reformulate Anti-Social Behaviour Order guidelines so that they neither encourage norpermit the excessive publicity of the making of orders against juveniles. In order to guarantee theright of children to privacy, the reproduction and public dissemination of posters reproducing thepictures of children submitted to ASBOs should be prohibited.


The Serious Organised Crime and Police Act 2005 has created a new offence of harassment of aperson in his home. A person will commit an offence if (i) he is present outside or in the vicinityof any premises that are used as a dwelling; (ii) he is there to represent to the resident or anotherindividual, or persuade the resident or another individual, that he should not do something he isentitled to do or should do something he is not obliged to do; (iii) the person intends his presenceto amount to harassment, alarm or distress to the resident or knows or ought to know that hispresence is likely to do so; and (iv) his presence amounts to or is likely to result in harassment ofthe resident or another individual. It also makes it an offence for a person, where he is subject to adirection to leave the vicinity, to return within a period of up to 3 months (the precise length oftime to be specified by a constable) for the purposes of representing to or persuading a person notto do something he is entitled to do, or to do something he is not obliged to do.

Positive aspects

The protection from harassment in one’s home provided by the offence created in the SeriousOrganised Crime and Police Act 2005.

Protection of family life (general, developments in family law)


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould provide for the possibility of private family visits in prisons.


It was held in Re J (a child) (return to foreign jurisdiction: convention rights) [2005] UKHL 40,[2005] 3 All ER 291 that the Court of Appeal had been wrong to allow the appeal of a child’sfather, who was a Saudi Arabian national, against the refusal to make an order that the childshould continue in the care of his mother, who had dual Saudi Arabian and British nationality, butthat they should both return to live in Saudi Arabia. The Judicial Committee of the House of Lordsconsidered that, in determining any question directed to a child’s upbringing, the welfare of thechild was the court’s paramount consideration. However, where the choice lay between decidingthe question of what was best for any individual child in the United Kingdom or deciding it in aforeign country, differences between the legal systems could not be irrelevant. In particular if therewere a genuine issue between the parents as to whether it was in the best interests of the child tolive in the United Kingdom or elsewhere it had to be relevant whether that issue was capable ofbeing tried in the courts of the country to which he was to be returned. If those courts had nochoice but to do as the father wished, so that the mother could not ask them to decide, with anopen mind, whether the child would be better off living in the United Kingdom or there, then thecourts of the former had to ask themselves whether it would be in the interests of the child toenable that dispute to be heard. The absence of a relocation jurisdiction might be a decisive factor


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but it might not be if it appeared that the mother would not be able to make a good cause forrelocation. There were also bound to be many cases where the connection of the child and all thefamily with the other country was so strong that any difference betweeen the legal systems shouldcarry little weight, In the instant case the trial judge was found to have been wrong to leave out ofaccount the absence of a jurisdiction in the home country to enable the mother to bring the childback to the United Kingdom without the father’s consent.

In upholding a successful appeal against the grant of a declaration of paternity to the male partnerof a former (unmarried) couple where fertilised embryos using donated sperm had beensuccessfully implanted in the female partner after their relationship had come to an end, albeitunknown to the clinic concerned, and a child had been born, it was held in Re R (a child) [2005]UKHL 33, [2005] 4 All ER 433 that the Human Fertilisation and Embryology Act 1990, s 28(3)made provision for the relationship of parent and child to be conferred on people who were relatedneither by blood nor marriage only where the embryo was placed in the mother at a time when thetreatment services were being provided for the woman and the man together. If the circumstanceswhich were taken into account when the couple were together changed dramatically it betterserved the purposes of the 1990 Act if the matter had to be reconsidered and fresh counsellingoffered before a further attempt at implantation was offered. Moreover it was important that thevery significant relationship of parenthood should not be based on fiction.

Right to family reunification


Following the conclusion in the Government’s review of international human rights instrumentsthat the immigration and nationality reservation to the Convention on the Rights of the Child,whereby the rights in the Convention do not apply as regards the entry, stay in and departure formthe United Kingdom of children subject to immigration control, should remain in force, the JointSelect Committee on Human Rights reiterated its previously stated view that this reservation iscontrary to the object and purpose of the Convention and undermines the United Kingdom'scommitment to protecting children's rights, and should therefore be withdrawn; Review ofInternational Human Rights Instruments, HL 99/HC 264, 31 March 2005.

Reasons for concern

The decision to maintain in force the reservation to the Convention on the Rights of the Child,whereby the rights in the Convention do not apply as regards the entry, stay in and departure fromthe United Kingdom of children subject to immigration control.

Private – and family life in the context of the expulsion of foreigners


It was held in Huang v. Secretary of State for the Home Department [2005] EWCA Civ 105 that itwas legally defective for the Immigration Appeal Tribunal to have deferred to the Secretary ofState’s view of proportionality when deciding whether it would be disproportionate to removepersons who had been refused leave to enter the United Kingdom in pursuit of the legitimate aimof the maintenance of immigration control where they had family members in the UnitedKingdom. However, it was considered that only one of the three cases in the appeal was likely tohave been found to be truly exceptional so as to give rise to a claim under Article 8 ECHRnotwithstanding that the person concerned did not meet the Immigration Rules.



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In dismissing an appeal against the inclusion, pursuant to the Criminal Justice Act 1988, s 74, in aconfiscation order following a conviction for certain money laundering offences of the offender’sshare in the matrimonial home, which could only be met if the home were sold, it was held in R v.Ahmed [2004] EWCA Crim 2599, [2005] 1 All ER 128 that a court, having concluded thatoffenders had benefited from criminal activity and having made findings as to the extent of thatbenefit, had no discretion in relation to the assessment of the value of realisable property but hadsimply to apply the provisions of section 74 in computing what was, in effect, a statutory debt. Theprocess did not involve any assessment of the way in which that debt might ultimately be paid andtherefore no questions arose at that stage under Article 8 ECHR. Different considerations mightarise if the debt were not met and the prosecution took enforcement action; if the court were askedto make an order for the sale of the matrimonial home, rights under Article 8 would be engagedand it was at that stage that the court would have to consider whether an order for sale would beproportionate.

The refusal of a local authority to treat the claimant, a British citizen, as having a priority need foraccommodation because the Housing Act 1996, s 185(4) required that no account be taken of herdependent daughter for this purpose solely because she was subject to immigration control washeld in R (on the application of Morris) v. Westminster City Council [2004] EWHC 2191 (Admin),[2005] 1 All ER 351 to have infringed her right under Article 14 ECHR to enjoy withoutdiscrimination her right to respect for her family life under art 8 since the difference in treatmentwas on grounds of national origin and was unlikely to achieve the legitimate aim in section 185 ofdiscouraging persons from coming to the United Kingdom to claim benefits and services.

In dismissing an appeal against a court’s ruling on a preliminary issue in an action for possessionagainst defendants who were gypsies that, where a public authority demonstrated that it had anabsolute right to possession of land, the decision of the House of Lords in Harrow LondonBorough Council v. Qazi [2003] UKHL 43, [2003] 4 All ER 461 prevented a defendant fromraising by way of defence to an action for an order for possession of that land a plea that theobtaining of possession would infringe his rights under Article 8 ECHR, notwithstanding that thatdecision was incompatible with the subsequent decision of the European Court of Human Rightsin Eur.Ct.H.R. (1st sect.) Connors v. United Kingdom (Appl. No 66746/01) judgment of 27 May2004 it was held in Leeds City Council v. Price [2005] EWCA Civ 289, [2005] 3 All ER 573 thatthe European Court’s decision could not be treated as identifying a discrete exception to thegeneral rule propounded by the majority in the House of Lords and, in the absence of any changein circumstances, the principle of legal certainty required, where there was a conflict between adecision of the European Court and a previous decision of the House of Lords, that the courtfollow the decision of the House of Lords.

Article 8. Article 8. Protection of personal data

Protection of personal data (in general, right of access to data, right to have them rectified and theright to a remedy)


Guidance issued by the Information Commissioner indicated that students were entitled under theData Protection Act 1998 to information about their exam performance, including examiners’comments, which should normally be provided within 40 days; 2 August 2005




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In overturning a successful challenge by a social worker to the disclosure (which was made after arequest by a social work agency for an enhanced criminal record certificate for him from theCriminal Records Bureau) under the Police Act 1997, s 115 of his arrest in relation to twoincidents of indecent exposure that was followed by an acquittal as the complainant failed to makea positive identification, it was held in R (on the application of X) v. Chief Constable of the WestMidlands Police [2004] EWCA Civ 1068, [2005] 1 All ER 610 that, having regard to the languageof section 115, the chief constable had been under a duty to disclose if the information might berelevant, unless there were some good reason for not making a disclosure. The policy of thelegislation, in order to serve the pressing social need to protect children and vulnerable adults, wasthat the information should be disclosed even if it only might be true. If it might be true, theemployer should be entitled to take into account before the decision was made as to whether or notto employ the person and such disclosure was not contrary to Article 2 ECHR. It would impose tooheavy an obligation on a chief constable to require him to give an opportunity for a person to makerepresentations prior to his performing his statutory duty of disclosure. It was considered that inthe instant case the social worker had had ample opportunity during the police interview to set outhis account and had not taken advantage of his statutory opportunity to correct the certificate.

The decision to disclose documents seized by the Serious Fraud Office (SFO) during a search aspart of an investigation of allegations that drug companies at artificially sustained prices to theSecretary of State for Health in connection with civil proceedings, pursuant to the authorisation inthe Criminal Justice Act 1987, s 3(5)(a) for information obtained by any person in his capacity as amember of the SFO to be disclosed to any government department by any member of the SFOdesignated by its Director, was held in R (on the application of Kent Pharmaceuticals Ltd) v.Director of Serious Fraud Office [2004] EWCA Civ 1494, [2005] 1 All ER 449 not to be liable tobe impugned on the basis that it was not made in accordance with the law for the purposes ofArticle 8(2) ECHR since the nominated representative of the SFO was granted a discretion to beexercised having regard to the purpose for which disclosure was sought, the policy and objects ofthe 1987 Act and the way in which access to the documents had been obtained and any attempt togive further guidance in section 3(5)(a) as to the circumstances in which the discretion to makedisclosure might be exercised would introduce undesirable rigidity. It was further held that thepower had to be exercised reasonably and in good faith and that disclosure could be challenged byjudicial review or in the context of proceedings brought against person concerned so that he wouldnot normally be without redress. In the present case the disclosure was appropriate as section3(5)(a), however restrictively worded, would clearly allow the SFO’s nominated representative todisclose to a government department to assist that department to prosecute a civil action seeking torecover losses allegedly caused by the fraud under investigation.

Article 9. Right to marry and right to found a family

Marriage and control of marriages suspect of being simulated


In Eur.Ct.H.R. (4th sect.) B and L v. United Kingdom (Appl. no 36536/02) judgment of 13September 2005 the bar on marriage between parents-in-law and children-in-law was found to be aviolation of Article 12 ECHR. Although pursuing a legitimate aim in protecting the integrity of thefamily, the bar did not prevent such relationships occurring and, since no incest, or other criminallaw provisions prevented extra-marital relationships between parents-in-law and children-in-law, itcould not be said that the ban on the applicants’ marriage prevented the second applicant’s sonfrom being exposed to any alleged confusion or emotional insecurity. The fact that, hypothetically,the marriage could take place if both their former spouses died, did not remove the inability of theapplicants to obtain legal and social recognition of their relationship. The same applied to the


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possibility of applying to Parliament as that was an exceptional and costly procedure, totally at thediscretion of the legislative body and not subject to discernable rules or precedent. The Courtconsidered that the inconsistency between the stated aims of the incapacity and the waiver appliedin some cases undermined the rationality and logic of the law in question.

Article 10. Freedom of thought, conscience and religion

Incentives and reasonable accommodations provided in order to ensure the freedom of religion,including the right to conscientious objection


In determining an application for a declaration which would have effect in the event ofirreconcilable disagreement between the parents of a child (who had gross, irreversible braindamage and the gravest chronic lung diseases) and her medical treatment team concerning atreatment decision, it was held in Re Wyatt (a child)(medical treatment: continuation of order)[2005] EWHC 2293 (Fam) that a doctor cannot be required to act contrary to his conscience. Incircumstances where a clinician concludes that a requested treatment is inimical to the bestinterests of the patient and his profesional conscience confirms that view, he may refuse to act andcannot be compelled to do so but he should not prevent another from so acting should thatclinician feel able to do so.

The dismissal of an employee who refused to work on Sundays on religious grounds following theadoption by his employer of a seven-day was considered in Copsey v. WWB Devon Clays Ltd[2005] EWCA Civ 932 either not to involve a material interference with the employee’s rightsunder Article 9 ECHR or, having regard to the reasonableness of the employer in offeringalternative positions, to be an interference with those rights that was justified.

Positive aspects

The conclusion in Re Wyatt that a clinician may refuse treatment for reasons of professionalconscience but should not another from so acting should that clinician feel able to do so.



In allowing an appeal against the refusal of an application for judicial review of the school’sdecision to refuse to allow a pupil to attend unless she complied with the uniform code, whichpermitted girls to wear headscarves and which required the wearing of a shalwar kameeeze (asleeveless, smock-like dress of no more calf-length worn over a school shirt and loose trouserstapering at the ankle), notwithstanding that she did not consider the shalwar kameeeze anappropriate form of dress for herself as a Muslim girl who had reached puberty, it was held in R(on the application of SB) v Governors of Denbigh High School [2005] EWCA Civ 199, [2005] 2All ER 396 that the school had failed to address the question of whether it was necessary in ademocratic society to place a particular restriction at that school (which permitted girls to wear aheadscarf which was likely to identify them as Muslim) on those Muslim girls who sincerelybelieved that when they arrived at the age of puberty they should cover themselves morecomprehensively than was permitted by the school uniform policy and had instead started from thepremise that its uniform policy was there to be obeyed and that if the claimant did not like it shecould go to a different school.

Positive aspects


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The ruling in the Denbigh High School case that a school uniform policy cannot be insisted uponwithout first considering whether the requirements in it are necessary in a democratic society.

Article 11. Freedom of expression and of information

Freedom of expression and of information (in general)


The Committee of Ministers has adopted an interim resolution (ResDH(2005)49, 5 July 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (GC)Hashman and Harrup v. United Kingdom (Appl. no) judgment of 25 November 1999, in whch ithad been held that there had been a violation of Article 10 ECHR due to the fact that the order bywhich the applicants, who had not breached the peace, were bound over to keep the peace and notto behave contra bonos mores did not comply with the requirement that it should be “prescribedby law”. The Committee noted that the judgment has been published in several law reports andalso noted with interest the publication of the Crown Prosecution Service Casework Bulletin No. 6of 2000, giving guidance to prosecutors, first, that they should not ask courts to consider binding-over orders unless there is evidence of past conduct which, if repeated, is likely to cause a breachof the peace in future, and second, suggesting that courts could be encouraged to ensure that thebehaviour to be avoided was made quite clear in the order. It also noted that a consultationdocument entitled “Bind Overs: A Power for the 21st Century” was issued in March 2003,including a recommendation that courts issuing binding-over orders should not specify “to keepthe peace” or “to be of good behaviour” but rather that the individual concerned is bound over todo or refrain from doing specific activities, as well as a recommendation that the details of theconduct specified by the court should be included in an order served by the court on all relevantparties but regretted that to date no Practice Direction has been issued and no other measure takenin accordance with these recommendations. Furthermore emphasising that it is now more than fiveyears since the judgment was delivered and noting that according to the information provided bythe Government, around 20 000 persons are bound over each year, of whom a proportion have,like the applicants in the present case, not been found to have committed a breach of the peace, theCommittee urged the United Kingdom authorities to take the remaining measures necessary tomeet its obligations under the Convention without further delay.

Reasons for concern

The delay in fully implementing the ruling in the Hashman and Harrup case.



A juror who had written to the defendant’s mother informing her of discussions that had takenplace in the jury room was held in A G v. Scotcher [2005] UKHL 36, [2005] 3 All ER 1 to havebeen in contempt of court contrary to the Contempt of Court Act 1981, s 8(1). The rulingrecognised that such a disclosure to the court, whether directly or indirectly, with the intention ofprompting an investigation would not be contrary to this provision but liability arose in this casebecause the disclosure had been to someone who had no authority to receive disclosures on behalfof the court and who might or might not pass on the contents of the letter to the court, somethingover which the juror had no control. It was considered that the juror had by his action created all


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the risks to the confidentiality of the jurors’ deliberations which s 8(1) was designed to prevent.The objective of securing the confidentiality of those deliberations was found to be sufficientlyimportant to justify limiting the juror’s freedom of expression through the offence created by s8(1) so that it was unaffected by the Human Rights Act 1998.

The award of costs increased by a success fee (of 95% and 100% for solicitors and counselrespectively) in an action against the media for defamation and wrongful publication of personalinformation, pursuant to a conditional fee agreement permitted by the Access to Justice Act 1999,was held in Campbell v. MGN Ltd (No 2) [2005] UKHL 61, [2005] 4 All ER 793 to be aproportionate measure to provide litigants with access to justice. Furthermore funding litigation inthis way was considered not to become disproportionate when a litigant did not need a conditionalfee agreement. The use of success fees were thus not an interference with the right to freedom ofexpression.

The provision in the Human Rights Act 1998, s 12(3) that a court was precluded from grantingsuch relief as to restrain publication before trial unless it was satisfied that the applicant was likelyto establish that publication should not be allowed was held in Greene v. Associated NewspapersLtd [2004] EWCA Civ 1462, [2005] 1 All ER 30 not to have changed the rule that, in an action fordefamation, a court would not impose a prior restraint on publication unless it was clear that nodefence would succeed at trial. It was considered that, in a section which was expressly concernedwith the protection of freedom of expression and not with undermining it, Parliament could not beinterpreted as having abrogated the rule by a sidewind and there was nothing in the ECHR thatrequired the elimination of the established rule. Furthermore the effect of Article10 would beseriously weakened if a claimant were able to stop a defendant from exercising its Article 10 rightmerely by arguing, on paper-based evidence, that it was more likely than not that the defendantcould not show that what it wished to say about the claimant was true. It would mean that peoplewith an undeserved fair reputation could stifle public criticism by obtaining injunctions simplybecause, on necessarily incomplete information, a court thought it more likely than not that theywould defeat a defence of justification at trial.

It was held in Culnane v. Morris [2005] EWHC 2438 (QB) that, in the light of the Human RightsAct 1998, the Defamation Act 1952, s 10 was to be interpreted as meaning that a candidate at aParliamentary or local election cannot claim a special privilege by virtue only of publishing wordsthat were material to a question in issue in the election. However, a candidate, like any othercitizen, might be able to establish a defence of qualified privilege if the ingredients recognised atcommon law are present on the facts of the case.

Further clarification was given in Jameel v. Wall Street Journal Europe SPRL [2005] EWCA Civ74, [2005] 4 All ER 356 as to the defence (recognised in Reynolds v. Times Newspapers Ltd[1999] 4 All ER 609) of qualified privilege to a libel action that was based on the publisher of anarticle having exercised ‘responsible journalism’. The Court of Appeal suggested that the phrase‘responsible journalism’ denoted the degree of care that a journalist should exercise beforepublishing a defamatory statement. Its requirements would vary according to the particularcircumstances and, in particular, the gravity of the defamation. Furthermore, while responsiblejournmalism had to be demonstrated before the Reynolds privilege could be established, it wasalso necessary to demonstrate that the subject matter of the publication was of such a nature that itwas in the public interest that it should be published. That was a more stringent test than that thepublic should be interested in receiving the information and in the present case it was found that anarticle suggesting that the respondent’s bank account was being monitored for possible terroristconnections was not one which it was in the public interest to publish without adequate attempts atverification and without belief in the truth of its defamatory implications. The Court of Appealalso rejected the submission that a requirement for a corporation to prove special damage in orderto establish a cause of action in libel would be required in order to produce an appropriate balancebetween the freedom of the press and protection of individual reputation. In the court’s view, if aforeign corporation which traded outside the jurisdiction succeeded in establishing that it had a


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trading reputation within the jurisdiction, the interests of justice required that the same principlesof law should apply to its claim for defamation as applied to a British corporation within theBritish corporation.

It was made clear in W v. Westminster City Council [2005] EWHC 102 (QB), [2005] 4 All ER 96that where a claim in libel is defeated by the defence of qualified privilege it did not follow thatclaim under the Human Rights Act 1998, art 8 must also fail.

It was not accepted by the Court of Appeal in Douglas v. Hello! Ltd (No 3) [2005] EWCA Civ595, [2005] 4 All ER 128 - which concerned a claim for damages by one magazine against another(Hello!) for publishing unauthorised pictures of a wedding where the first magazine had a contractgiving it the exclusive right to publish photographs of the event - that it had not been reasonablyforeseeable to Hello! when they decided to proceed with publication that the developing Englishlaw might result in it being held to have infringed rights of privacy or confidence. Hello!’s appealagainst a finding of liability in damages based on privacy and commercial confidence wasdismissed as the photographs of the wedding had portrayed aspects of the couple’s private life andfell within the protection of the law of confidentiality, as extended to cover private or personalinformation. However, the first magazine could not invoke against Hello! any right to commercialconfidence in relation to the details of the wedding or the photographic images portraying as itonly had an exclusive right to exploit the authorised photographs commercially; Hello! hadpublished other images which invaded the area of privacy that the couple had chosen to retain andit was they who had the right to protect that area of privacy or confidentiality.

Article 12. Freedom of assembly and of association

Freedom of peaceful assembly


In dismissing appeals against convictions arising from protest action at military bases against theIraq war by persons considering it to be illegal, it was held in Ayliffe v. DPP [2005] EWHC 684(Admin), [2005] 3 All ER 330 that conduct which might amount to crimes against peace or tocrimes of aggression was not unlawful activity so that the persons concerned could not be regardedas having committed the offence of aggravated trespass under the Criminal Justice and PublicOrder Act 1994, s 68 by trespassing on land and in relation did anything intended to have theeffect of obstructing or disrupting any ‘lawful activity’ which persons were engaging in there. As aconsequence the issue of the legality of the war was non-justiciable. It was further held that, in sofar as the defendants had sought to raise the issue of war crimes contrary to the InternationalCriminal Court Act 2001, the general allegations made by them had not raised any issue requiringconsideration in connection with the lawfulnes of the activities at the bases. It was ruled, however,that if a defendant raised an issue that his or her intention had been to disrupt an unlawful activity,it would not assist the prosecution to limit the description in the charge to some lawful aspect ofwhat was occurring on the land. Furthermore it was held that the provision in the CriminalDamage Act 1967, s 3 allowing the use of such force as was reasonable in the prevention of crimeafforded no defence to the offence of criminal damage where no issue had been raised that any warcrime had been committed. In addition it was held that, even if activities on the bases might haveeventuated in some war crime, there had been no nexus between the damage and the preventing ofsuch activity.

It was held in R (on the application of Brehony) v. Chief Constable of Greater Manchester, TheTimes, 15 April 2005 that the exercise of the power under the Public Order Act 1986, s 14(1)(a) toimpose conditions on the holding of a public assembly where the police have reasonable belief thatit may result in serious public disorder, serious damage to property or serious disruption to the life


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of the community required reasons to be given. However, no such obligation was considered toapply where conditions were imposed on the scene of an assembly

The Serious Organised Crime and Police Act 2005 creates the offence of organising or taking partin a demonstration, or carrying out a demonstration alone, without an authorisation in thedesignated area, with exemptions for lawful industrial disputes and public processions. "Thedesignated area" is to be defined in an order made by the Secretary of State but no point in thedesignated area may be more than one kilometre from Parliament Square. A person seekingauthorisation for a demonstration must give written notice to the Commissioner of Police of theMetropolis. If it is reasonably practicable, notice is to be given not less than 6 clear days before thedemonstration is to start but if not reasonably practicable, notice is to be given as soon as it is. Inall cases at least 24 hours' notice must be given. If a written notice complying with therequirements of the provisionis received the Commissioner must give authorisation for thedemonstration but he can impose conditions on those taking part in or organising a demonstration,if, in his reasonable opinion they are necessary for the purpose of preventing any of thefollowing: (a) hindrance to any person wishing to enter or leave the Palace of Westminster, (b)hindrance to the proper operation of Parliament, (c) serious public disorder, (d) serious damage toproperty, (e) disruption to the life of the community, (f) a security risk in any part of thedesignated area, (g) risk to the safety of members of the public (including any taking part in thedemonstration).There is a defence where a person can prove that failure arose from causes beyondhis control or from something done with the agreement or by the direction of a police officer. Aloudspeaker shall not be operated, at any time for any purpose in a street within the designatedarea.

The Serious Organised Crime and Police Act 2005 creates a criminal offence in England, Walesand Northern Ireland, of trespassing on sites designated by order by the Secretary of State, whomay do so if (a) it is Crown land, (b) it is privately owned by either the Monarch or the immediateheir to the Throne, or (c) it appears to the Secretary of State. A corresponding offence is created ofentering, or being on, a designated site in Scotland without lawful authority but the Secretary ofState may only designate sites in Scotland in the interests of national security.The House of Commons Northern Ireland Affairs Committee considered that the Government’sdelay in responding to the report by Sir George Quigley on his review of the Parades Commissionand the Public Processions (Northern Ireland) Act 1998, issued for public consultation inNovember 2002, had been particularly unfortunate because its own inquiry had shown that steadyprogress has been made by the Parades Commission in difficult and highly contentiouscircumstances. It considered that replacing it with new organisational arrangements, as suggestedby Sir George Quigley, could entail considerable disruption and place at risk the progress towardsa peaceful marching season. The Committee regarded wholly local and peaceful resolutions tolocal disputes to be the ultimate goal but believed that, while third party intervention in suchdisputes continued to be needed, retaining the Parades Commission offers the best hope fordeveloping peaceful resolutions. However, in order to move forward, it considered that theCommission needed to improve its procedures in important respects, in particular to: make theobjections to parades clearer and more accessible to organisers; take forward its proposal todevelop a "compliance and post mortem" procedure to provide parade organisers in good timewith detailed feedback on the key issues brought to the Commission's attention during themarching season; include in its determinations fuller explanations and greater detail about thepotential impact of a parade on community relations and on human rights and public order; andreview its involvement in mediation as a matter of urgency and strengthen its cadre of AuthorisedOfficers. The Committee also considered that the recommendation in Sir George Quigley's reportthat responsibility for restrictions on parades imposed on public order grounds should revert to thepolice risked placing the police in an impossible position. It believed that it is essential to furtherprogress in the resolution of disputes for the police to be seen unambiguously as occupying neutralground and to remain completely apart from decisions about parades. It stated that the confusionwhich emerged during the 2004 marching season about the status of parade followers resulted inserious disorder in the Ardoyne area of North Belfast and recommended that the government's


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review of existing legislation ensures that there was sufficient clarity about followers in advance ofnext year's marching season; The Parades Commission and Public Processions (Northern Ireland)Act 1998, HC 172, 11 January 2005.

Reasons for concern

The absolute requirement for 24 hours’ notice before a demonstration can be held in a designatedarea within a kilometre from Parliament Square.

Freedom of association


In Case No. 2383, Report No. 336, Complaint against the Government of United Kingdompresented by the Prison Officers' Association (POA), which concerned the prohibition in theCriminal Justice and Public Order Act 1994, s 127 of industrial action by prison officers employedby the State and prisoner custody officers employed by private sector companies to which certainof the functions of the prison service have been contracted out, the ILO’s Committee on Freedomof Association considered that the prison service constitutes an essential service in the strict senseof the term and that prison officers, as well as prisoner custody officers to the extent that theyperform the same functions, exercise authority in the name of the State so that it is in conformitywith freedom of association principles to restrict or prohibit the right to take industrial action in theprison service. However, it found that, even if it were held that abridgement of the right to takeindustrial action was justified, the necessary condition for such abridgement, namely, the provisionof adequate compensatory guarantees, did not exist. Thus, the Committee invited the GoverningBody to approve the following recommendations: (a) the Committee requests the Government totake the necessary measures so as to establish appropriate mechanisms in respect of prisonercustody officers in private sector companies to which certain of the functions of the prison havebeen contracted out so as to compensate them for the limitation of their right to strike. (b) TheCommittee requests the Government to initiate consultations with the complainant and the prisonservice with a view to improving the current mechanism for the determination of prison officers'pay in England, Wales and Northern Ireland. In particular, the Committee requests theGovernment to continue to ensure that: (i) the awards of the Prison Service Pay Review Body arebinding on the parties and may be departed from only in exceptional circumstances; and (ii) themembers of the Prison Service Pay Review Body are independent and impartial, are appointed onthe basis of specific guidance or criteria and have the confidence of all parties concerned. (c) TheCommittee requests to be kept informed of developments in respect of the above.



An appeal against a finding that someone could be convicted of belonging to a proscribedorganisation contrary to the Terrorism Act 2000, s 11(1) where someone belonged to the RealIRA, which provided that an organisation was proscribed if it was listed in Schedule 2 or operatedunder the same name as a listed organisation, was dismissed in R v. Z [2005] UKHL 35, [2005] 3All ER 95 primarily on the basis that the Real IRA, although not listed, was to be regarded as partof the ‘Irish Republican Army’, which was a listed organisation and was an umbrella term capableof describing all manifestations or splinter groups.

The power in section 3 of the the Terrorism Act 2000 for the Secretary of State to proscribe anyorganisation which he believes is concerned in terrorism (ie, one that commits or participates inacts of terrorism, prepares for terrorism, promotes or encourages terrorism, or is otherwise


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concerned in terrorism) has been used in the Terrorism Act 2000 (Proscribed Organisations)(Amendment) Order 2005, SI 2892 to proscribe the following organisations with a supposed linkto violent radicalisation: Al Ittihad Al Islamia; Ansar Al Islam; Ansar Al Sunna; Groupe IslamiqueCombattant Marocain; Harakat-ul-Jihad-ul-Islami; Harakat-ul-Jihad-ul-Islami (Bangladesh);Harakut-ul-Mujahideen/Alami; Hezb-e Islami Gulbuddin; Islamic Jihad Union; Jasmaat ul-Furquan; Jundallah; Khuddam ul-Islam; Lashkar-e Jhanvi; Libyan Islamic; Fighting Group; andSipah-e Sahaba Pakistan. This brings the total of 40 international terrorist groups proscribed underthe Act to 40. It is an offence to belong or profess to belong to a proscribed organisation, to invitesupport for a proscribed organisation, to arrange, manage or assist in arranging or managing ameeting which one knows is to support a proscribed organization, to further its activities or is tobe addressed by a person who belongs or professes to belong to a proscribed organisation. It is alsoan offence to addresses a meeting where the purpose of this address is to encourage support for aproscribed organisation or to further its activities.

Article 13. Freedom of the arts and sciences

No developments have been reported for the period under scrutiny underthis provision of the Charter.

Article 14. Right to education

Access to education


A national of another member state, whatever his actual degree of integration into the society ofthe host member state, was considered in Case C-209/03 R (on the application of Bidar) v. EalingLondon Borough Council [2005] All ER (EC) 687 to be incapable of fulfilling the requirementsfor eligibility for a student loan in the Education (Student Support) Regulations 2001, namely, ofbeing ordinarily resident in England and Wales throughout the preceding three-year period whenhis residence then not have been wholly or mainly for the purpose of receiving full-time education,and the rules could not, therefore, be regarded as justified by the legitimate objective of requiring adegree of integration which those rules sought to achieve. A member state could not requirestudents to establish a link with its employment market, as a student’s situation was notcomparable to that of an applicant for, inter alia, a jobseeker’s allowance.

The Education Act 2005, s 115 brings the power of governing bodies to direct excluded children toattend alternative provision in line with those for other children (previously pupils who wereexcluded from school for a fixed period or were appealing against a permanent exclusion could notattend a school from which they have been excluded and so schools could not direct such excludedpupils to attend alternative educational provision). Section 116 of the Act extends the fixed penaltynotice system (in which a parent or a carer can be issued with a penalty notice or be prosecuted forfailing to ensure that a child for whom he is responsible attends the alternative provision that hasbeen made for the child) to the parents of excluded children who have been directed to attendalternative provision.

Positive aspects

The adoption of a power to direct excluded pupils to attend alternative educational provision.


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The provision in the Education Act 1996, s 548(1) that corporal punishment given by or on theauthority of a member of staff to a child for whom education was provided at any school could notbe justified in any proceedings on the ground that it was given in pursuance of a right exercisableby the member of staff by virtue of his position as such and extending an existing statutory ban oncorporal punishment from state schools to independent schools was held in R (on the applicationof Williamson) v. Secretary of State for Education and Employment [2005] UKHL 15, [2005] 2 AllER 1 not to violate the rights of the claimant parents or the claimant teachers under Article 9ECHR nor the rights of the claimant parents under Protocol 1, Article 2 ECHR. The House ofLords ruled that the ban on corporal punishment had been prescribed by primary legislation inclear terms, it pursued a legitimate aim in that children were vulnerable and the aim of thelegislation was to protect them and promote their wellbeing. Furthermore the means chosen toachieve that aim - a universal ban - were considered to be appropriate and not disproportionate intheir adverse impact on parents who believed that carefully controlled administration of corporalpunishment could be beneficial.

The House of Commons Education and Skills Committee considered that the current provision ofprison education is unacceptable. Whilst the Government has provided a substantial increase inresources it is failing to fully meet its manifesto commitment to 'dramatically increase the qualityand quantity of education provision'. In 2004, still less than a third of prisoners had access toprison education at any one time. It considered that needed to be a fundamental shift in approachto prison education and a step change in the level of high quality provision that is suited to meetthe needs of individual prisoners to provide them with a real alternative to crime on release. TheCommittee saw prison education as part of a wider approach to reduce recidivism through therehabilitation of prisoners and considered that such education must consider the full range of needsof the prisoner and continue to support the prisoner on release. It found that the transfer ofresponsibility to the Department for Education and Skills in 2001 had not yet achieved asignificant increase in the priority given to prison education, with progress in the provision ofprison education and training is being hampered by a lack of an effective over-arching strategy. Itrecommended that the Learning and Skills Council is given the appropriate resources necessary toapply its standard funding methodology so that prisons have access to all of the funding streamsavailable to mainstream Colleges. In particular, it wished to see the Additional Learning Supportfunding approach applied to prison education. Furthermore existing budget constraints, based onhistorical levels of provision, should not continue; a clear strategy for prison education should becosted and appropriately funded. The Committee considered that there needed to be a much betterintegration of education, vocational training, and work regimes in prisons and a significant stepchange in the level of provision of high quality vocational and work-based education. Schemessuch as the Young Offender Programme, led by National Grid Transco, that now involves over 50employers and trains prisoners for real jobs to meet a genuine skills gap must be the way forwardfor vocational training in prisons. The Committee would like to see more identification of skillsshortages within local areas to the prison, and partnerships developed with businesses to meetthese skill shortages. Real pay for real work should be given further consideration and, at the veryleast, the pay that prisoners receive for education should be equal to any other activity undertaken.It would also like to see the Government encouraging a great deal more entrepreneurial activitywithin prisons, with more business enterprises within prisons providing real work for prisoners,and much closer links with local Further Education Colleges, Universities and employers.It foundthat the delivery of prisoners' Individual Learning Plans as part of their sentence plans needsurgent improvement and that implementation so far had been shambolic. Individual LearningPlans needed a thorough and robust assessment of needs (including special educational needs),linked to entitlement, and a much greater focus on the continuation of provision on release throughmainstream services. It also found that there were a number of barriers across the wider prisonregime that were adding to the difficulty of successfully delivering prison education, including


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overcrowding and the constant movement of prisoners between prisons, described colloquially as'churn'. Without changes to the wider prison regime, and without a strong commitment to reduceovercrowding and 'churn', it would be very difficult to achieve improvements in prison education.A much greater level of investment in staff education and development was required in order toencourage a more positive attitude amongst Prison Officers towards the role that education has toplay in prisons.; Prison Education, HC 114, 21 March 2005.

Reasons for concern

The continuing inadequacy of the arrangements for education in prison.

Article 15. Freedom to choose an occupation and right to engage in work

The right to engage in work and the right for nationals from other member States to seek anemployement, to establish themselves or to provide services


In an Individual Direct Request concerning ILO Convention No. 122, Employment Policypublished in 2005, the Committee of Experts on the Application of Conventions andRecommendations noted that the Government's report has not been received. The Committeehoped that a report will be supplied for examination at its next session and that it will contain fullinformation on the matters raised in its 2002 direct request, which read as follows: “TheCommittee notes with interest the detailed information contained in the Government's report for 1June 2000-31 May 2002, the Employment Action Plan 2000 and other documentation forwarded,as well as the detailed reply to the 2001 direct request, in particular, concerning projects for thehomeless and former drug users. 1. Articles 1 and 2 of the Convention. The Government states thatthe employment rate was 74.7 per cent in March-May 2002, up from 74.6 per cent in 2000.Employment has continued to shift from the production sector to the services sector.Unemployment decreased from 5.7 per cent in March-May 2000 to 5.2 per cent in 2002. Theunemployment rate was 5.7 per cent for men and 4.6 per cent for women. Long-termunemployment as a percentage of total unemployment has continued to decline. And youthunemployment is at its lowest level since the mid-1970s, with almost no long-term youthunemployment. 2. The Committee notes that many of the pilot programmes described in detail inthe last report have now been launched nationally, based on lessons learned in the pilot phase. Italso notes with interest the extension of some programmes, such as the New Deal for Partners inisolated communities, New Deal for 50 Plus, etc. The Committee would appreciate continuing toreceive information on the impact of these various programmes on employment promotion for thetarget groups. The Committee also would appreciate continuing to receive information on macro-level policies (fiscal, monetary, trade, etc.) that directly affect job growth. 3. Furthermore, theCommittee notes the comments on some positive aspects of government skills and union trainingpolicy made by the TUC on the application of the Convention received in the Office in November2002 and forwarded to the Government in December 2002.”

Article 16. Freedom to conduct a business



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Article 17. Right to property

The right to property and the restrictions to this right


In Eur.Ct.H.R. (4th sect.) J A Pye (Oxford) Ltd v. United Kingdom (Appl. no 44302/02) judgment of15 November 2005 the Court concluded (4-3) that the application of the provisions of theLimitation Act 1980 (which provides that a person cannot bring an action to recover any land afterthe expiration of 12 years of adverse possession by another) and the Land Registration Act 1925(which provided that, after the expiry of the 12-year period, the registered owner held the land intrust for a squatter) to deprive the applicant companies of their title to certain registered landwithout any obligation to provide compensation imposed on them an individual and excessiveburden and upset the fair balance between the demands of the public interest on the one hand andthe applicants’ right to the peaceful enjoyment of their possessions on the other. There hadtherefore been a violation of Protocol 1, Article 1 ECHR.

In Eur.Ct.H.R.(4th sect.) P M v. the United Kingdom (Appl. no 6638/03) judgment of 19 July 2005the inability of an unmarried father to deduct for tax purposes maintenance payments made inrespect of his daughter was found to be a violation of Article 14 ECHR in conjunction withProtocol 1, Article 1 since, although the purpose of the tax deductions was purportedly to render iteasier for married fathers to support a new family, it was not readily apparent why unmarriedfathers, who undertook similar new relationships, would not have similar financial commitmentsequally requiring relief. However, as the discrimination in the applicant’s case derived from theIncome and Corporation Taxes Act 1988 and Article 13 did not go so far as to guarantee a remedyallowing the primary legislation of a State which had ratified the European Convention on HumanRights to be challenged before a national authority on the grounds that it was contrary to theConvention, the Court held that the facts of his case disclosed no violation of Article 13 ECHR.

The Committee of Ministers has adopted a resolution (ResDH(2005)101, 26 October 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (4th sect)Stretch v. United Kingdom (Appl. no 44277/98) judgment of 24 June 2003 in which a violation ofProtocol 1, Article 1 ECHR had been found in respect of a complaint concerning the denial in1991 of his option for a further term of twenty-one years under a lease concluded with a localauthority, the government having indicated that the Court's judgment had been sent out to theauthorities directly concerned.


The effect of the Land Registration Act 1925, s 75 together with the relevant provisions of theLimitation Act 1980, which allowed for a person to obtain registration of title by adversepossession of land belonging to another but over which he or she had enjoyed exclusive possessionand control for a period of 12 years was held in Beaulane Properties Ltd v. Palmer [2005] EWHC1071 (Ch), [2005] 4 All ER 461 to engage Protocol 1, Article 1 ECHR, notwithstanding that theyhad no public purpose and merely regulated private transactions, since they affected propertyrights as a matter of substance and amounted to a deprivation rather than a control over the use ofproperty. It was considered that expropriation of registered land without compensation incircumstances such as existed in the instant case did not advance any of the legitimate aims of thestatutory provisions and was disproportionate. As a result of a reinterpretation of those provisionsin accordance with the Human Rights Act 1998, s 3, it was ruled that the defendant’s claim to haveacquired the disputed land failed and that the claimant remained the owner of it.


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Article 18. Right to asylum

Asylum proceedings


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould: extend the five day time-limit for the filing of appeals against negative Asylum andImmigration Tribunal decisions before the High Court, so as to permit their effective presentation;improve the quality of first instance asylum decisions by immigration officers, through increasedtraining for front-line immigration officers and improved internal review of the reasons for highsuccess rates of appeals by applicants from certain countries; provide for the possibility of openregimes in asylum processing centres for applicants in fast-track proceedings; reinstate thesuspensive effect of appeals against negative asylum decisions on the deportation of applicants infast-track proceedings; ensure that assistance from the National Asylum Support Service is notwithheld from applicants who would otherwise be rendered destitute (see further below); and placethe burden of proof on the prosecution to show that the accused has deliberately destroyed his orher identity documents for the purpose of entering the country or frustrating deportation.


The provision in the Nationality, Immigration and Asylum Act 2002, s 101 that unsuccessfulappellants against a refusal of asylum could apply to the court for review of the ImmigrationAppeal Tribunal’s decision on the ground that the tribunal had made an error of law (statutoryreview) was held in R (on the application of G) v. Immigration Appeal Tribunal [2004] EWCACiv 1731, [2005] 2 All ER 165 to justify the exercise of the court’s discretion to decline toentertain an application for judicial review of issues which had been, or could have been, thesubject of statutory review, notwithstanding that the latter procedure involved no right to an oralhearing and carried no right of appeal to the Court of Appeal. It was considered that the statutoryprocedure carried a satisfactory assurance that the rights of those entitled to asylum would beupheld and that the procedural restriction inherent in the statutory review on paper applied at onlyone stage of the procedure, with the likelihood of an arguable point of law being overlooked in theabsence of an oral hearing not being great. It was also considered that the discretionary denial ofjudicial was objectively justified and did not fall within Article 14 ECHR since non-nationalsseeking entry or asylum stood in a fundamentally different legal situation from those who couldenter or remain by right and s 101, although differing from other forms of recourse to the courts,was not deficient or unjust.

The obligation of the Secretary of State for the Home Department under the Nationality,Immigration and Asylum Act 2002, s 55(5)(a) to arrange for support for an asylum applicantwhere the claim was not made as soon as reasonably practicable after the applicant’s arrival in theUnited Kingdom, to the extent that this was necessary for the purpose of avoiding a breach of theapplicant’s ECHR rights, was held in R v. Secretary of State for the Home Department, ex p Adam[2005] UKHL 66 to arise when it appeared on a fair and objective assessment of all the relevantfacts and circumstances that an individual applicant faced an imminent prospect of serioussuffering caused or materially aggravated by denial of shelter, food or the most basic necessities oflife. It was concluded that there had been a breach of Article 3 ECHR in the present case as a resultof the withdrawal of support from the appellant as a result of his late asylum application and of histhen being forced to live rough for two nights, having no access to washing facilities and havinghad to beg for food.

Reasons for concern


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The five day time-limit for the filing of appeals against negative Asylum and ImmigrationTribunal decisions.

Recognition of the status of refugee


An applicant for asylum, whose original claim had been rejected on the basis that he could safelyrelocate within Iraq to the Kurdish Autonomous Zone at a time when unknown to him theSecretary of State had a policy of not refusing asylum claims on the basis of such potentialrelocation but which policy had since lapsed, was held in R (on the application of Rashid) v.Secretary of State for the Home Department [2005] EWCA Civ 744 to have a legitimateexpectation that the Secretary of State would apply the appropriate policy, whatever that might be,to his claim and whether that policy was known to him was immaterial. It was considered that thepersistent failure of the Secretary of State to apply his own policy or to communicate it to thosehandling the claimant’s case was startling and inexplicable, as was the delay in considering thecase once the correct policy came to light. That persistence and the lack of explanation for itcontributed to the seriousness of the abuse. Others in an identical position had eventually benefitedfrom the policy and fairness demanded that the claimant be treated in the same way. Theappropriate remedy for the detriment he had suffered would be that he should be given indefiniteleave to remain.

In dismissing an appeal against the dismissal of an application for judicial review of a refusal ofasylum in which it had been claimed that, notwithstanding the reasonable level of protectionprovided by Lithuania, Article 3 ECHR established an absolute bar on expulsion where violence inthe receiving country was threatened by non-state actors, it was held in R (on the application ofBagdanavicius) v. Secretary of State for the Home Department [2005] UKHL 38, [2005] 4 All ER263 that there was a distinction in non-state agent cases between the risk of serious harm and therisk of treatment contrary to art 3. Where the risk emanated from intentionally inflicted acts of thepublic authorities in the receiving countries, those terms could be used interchangeably; theintentionally inflicted acts would, without more, constitute a proscribed treatment. However,where the risk emanated from non-state bodies, that was not so; any harm inflicted by non-stateagents would not constitute art 3 ill-treatment unless in addition the state failed to providereasonable protection.

In dismissing appeals by ethnic Albanians from Kosovo against the refusal of their claims forrefugee status because they no longer had a current well-founded fear of persecution and couldsafely return home, an international peace-keeping force had replaced the Serb army in Kosovo, itwas held in R (on the application of Hoxha) v. Special Adjudicator [2005] UKHL 19, [2005] 4 AllER 580 that they could not claim to have been ‘recognised’ as refugees within the meaning ofArticle 1C(5) of the Geneva Convention Relating to the Status of Refugees 1951, by virtue ofhaving at some time fulfilled the criteria for refugee status under Article 1A(2) as the formerprovision had no application unless and until it was invoked by the state against a refugee in orderto deprive him of the refugee status previously accorded to him. Moreover the proviso to Article1C(5) with regard to the ability to invoke compelling circumstances arising out of previouspersecution for refusing to avail himself of the persecution of the country of nationality was notcapable of availing the applicants since, having regard to the clarity of its ordinary meaning, onlythe most compelling case founded under Article 31 of the Vienna Convention on the Law ofTreaties on ‘subsequent practice’ could properly give rise to a different and apparentlycontradictory interpretation from that obviously first intended (ie that it applied to Article 1A(1)and not Article 1A(2) refugees), and there was no such current international practice.


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Article 19. Protection in the event of removal, expulsion or extradition

Subsidiary protection and prohibition of removals of foreigners to countries were they face a realand serious risk of being killed or being subjected to torture or to other cruel, inhuman anddegrading treatments


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould ensure the judicial supervision of expulsions carried out on the basis of diplomaticassurances.


With a view to facilitating the deportation of persons who would otherwise be considered at risk ofbeing subjected to torture or inhuman and degrading treatment in the receiving State, the UnitedKingdom has concluded memorandums of understanding with Jordan, Lebanon and Libyawhereby a commitment is made that deportees to those countries would be treated in a “humanemanner in accordance with internationally accepted standards” and would not face the deathpenalty. Efforts are currently understood to being made to conclude similar agreements withAlgeria, Morocco and Tunisia.

Reasons for concern

The use of unenforceable diplomatic assurances that individuals will not be ill-treated in an effortto facilitate their deportation to countries that do not currently fulfil their existing legal obligationsnot to use torture and inhuman and degrading treatment (see also “Article 6”).

Foreigners under a life-saving medical treatment


The expulsion of the appellant, who came from Uganda and had been refused leave to enter theUnited Kingdom but had pending the decision received anti-retroviral treatment for the advancedHIV/AIDS from which was suffering, was held in N v. Secretary of State for the HomeDepartment [2005] UKHL 31, [2005] 4 All ER 1017 not to be inhuman treatment for the purposesof Article 3 ECHR where she was not critical, was fit to travel and would remain fit if and so longas she could obtain treatment in Uganda. It was considered difficult to see why a person who hadhis hopes raised by receiving treatment pending a decision should subject the country to a greaterobligation than it would owe to someone who was turned away at the port of entry and neverreceived treatment. In reaching this conclusion reliance was placed on Strasbourg jurisprudenceand it was stated that, if an extension to the scope of the ECHR was needed to keep pace withmedical developments that had to be left to the Strasbourg court.

Legal remedies and procedural guarantees regarding the removal of foreigners


In dismissing an appeal against a finding that the respondent to an extradition application byAlbania had not deliberately absented himself from the trial at which he had been convicted ofpremeditated murder and illegal possession of military weapons, so that his discharge was required


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under the Extradition Act 2003, s 85(3), it was held in Government of the Republic of Albania v.Bleta [2005] EWHC 475 (admin), [2005] 3 All ER 351 that the term ‘his trial’ contemplated aspecific event and not the entire legal process, with particular regard having been paid to the use inArticle 6 ECHR of the word ‘hearing’ and the reference in this provision to a right to a hearing anda right to be informed of the nature and cause of the accusation. It was found that in the instantcase the respondent had deliberately absented himself from Albania but that it had not beenestablished that he had left that jurisdiction or had remained in the United Kingdom with theintention expressed in section 85(3). The court considered that the words of section 85(3) couldnot be construed as covering those circumstances and, as there was no sufficient assurance that therespondent would receive the retrial or review required, the appeal had to be dismissed.


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CHAPTER III. EQUALITY

Article 20. Equality before the law

Equality before the law


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould ensure that the proposed Commission for Equality and Human Rights enjoys the necessaryresources and independence to carry out its functions effectively.


The Joint Select Committee on Human Rights has concluded that the Government's caution indeciding not to ratify Protocol 12 ECHR, which guarantees a free-standing right to equality, isunwarranted; Review of International Human Rights Instruments, HL 99/HC 264, 31 March 2005.

In upholding the dismissal of appeals against judicial review applications of (a) the payment ofannual cost of living increases to persons receiving the state retirement pension living in theUnited Kingdom or in countries which had recepirocal treaty arrangements with it but not in othercountries, notwithstanding that the latter had paid all the necessary national insurancecontributions for the pension and (b) the payment of a lesser jobseekers’ allowance to personsunder 25 than to those who were 25 or older, notwithstanding the contributions basis for theallowance, it was held (Lord Carswell dissenting) in R (on the application of Carson) v. Secretaryof State for Work and Pensions [2005] UKHL 37, [2005] 4 All ER 545 that it was necessary todistinguish between those grounds of discrimination which appeared to offend against notions ofthe respect due to the individual and those which merely required some rational justification as inthe present two cases. The payment of national insurance contributions could not be a sufficientcondition for the similar treatment of all pensioners as the interlocking arrangements for taxationand social security made it impossible to extract one element for special treatment and the positionof a non-resident pensioner was materially and relevantly different from that of a United Kingdomresident, as it was to that of a pensioner living in a country that had been willing to enter intosuitable reciprocal social security arrangements. Furthermore, as the the necessary expenses ofyoung people as a class were lower, they coulf be treated differently for the purpose of socialsecurity payments and the objective justification for the differential treatment between those oneday under the age of 25 and those aged 25 was the need for legal certainty and a workable rule.

The payment of a non-means tested pension to widows but not widowers was held in R (on theapplication of Hooper) v. Secretary of State for Work and Pensions [2005] UKHL 29 to bejustified as older widows were economically disadvantaged class which merited special treatmentand, while they were becoming less disadvantaged the question of the precise moment at whichsuch special treatment was no longer justified was a social and political question within thecompetence of Parliament.

Reasons for concern

The failure to accept the free-standing right to equality in Protocol 12 ECHR.


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Article 21. Non-discrimination

Protection against discrimination


The European Commission against Racism and Intolerance (ECRI) has found progress in anumber of areas since its second report. The legal framework against racism and racialdiscrimination had been strengthened. An important element of this framework, the statutory dutyon public authorities to promote equality has been in force and implemented for over three years.Emphasis has increasingly been put on the achievement of concrete outcomes for ethnic minoritiesand specific equality targets for these groups of persons have been set across the public sector.Monitoring of the situation of different ethnic groups across a wide range of areas has facilitatedthe identification of priority areas for action and the elaboration of targeted policies. A strategy hasbeen launched to promote community cohesion and race equality throughout Great Britain.Citizenship education has been introduced in secondary schools in order to better reflect the needsof a multicultural school population. Work is underway to establish a support mechanism to raisethe awareness of the general public of their rights under the Human Rights Act and to advise andassist individuals. However, it found that a number of recommendations made in the second reporthad not been implemented or had only been partially implemented. Moreover, in spite ofinitiatives taken, members of ethnic and religious minority groups continue to experience racismand discrimination, with asylum seekers and refugees being particularly vulnerable to thesephenomena, partly as a result of changes in asylum policies and of the tone of the debate aroundthe adoption of such changes. It also found that members of the Muslim communities experiencedprejudice and discrimination, especially in connection with the implementation of legislation andpolicies against terrorism. Continuing high levels of hostility, discrimination and disadvantage ofRoma/Gypsies and Travellers were also a cause for concern; the media had continued to play animportant role in determining the current climate of hostility towards asylum seekers, refugees,Muslims, Roma/Gypsies and Travellers. Although it was in part the result of better reporting andrecording techniques, the number of racist incidents was high. The disproportionate impact ofcriminal justice functions on ethnic minorities had continued to increase. ECRI recommended: thatthe authorities of the United Kingdom take further action in a number of areas: the ratification ofProtocol 12 ECHR, the European Convention on Nationality, the European Social Charter(Revised), the Convention on the Participation of Foreigners in Public Life at Local Level, theAdditional Protocol to the Convention on Cybercrime, the European Convention on the LegalStatus of Migrant Workers and the International Convention on the Protection of the Rights of AllMigrant Workers and Members of their Families, the Additional Protocol to the Convention onCybercrime, the European Convention on the Legal Status of Migrant Workers and theInternational Convention on the Protection of the Rights of All Migrant Workers and Members oftheir Families and the First Optional Protocol to the ICCPR, as well as accepting Article 14 of theICERD; the adoption of a consolidated equality act that would eliminate current discrepancies inthe levels of protection of individuals against discrimination; improvements in the methods bywhich racist incidents are reported and recorded and to monitor the implementation of theprovisions against racially and religiously aggravated offences; raising the awareness of the courtsof the need to ensure that all racially or religiously aggravated offences are duly punished and thatthe sentences handed down adequately reflect the gravity of the offences; the swift enactment oflegislation prohibiting incitement to hatred against religious groups; reform the blasphemy law, inorder to ensure that it does not discriminate between religions; the monitoring of the situation asconcerns racism and racial discrimination in prisons; repeal Section 19D of the Race Relations Act1976, which provides for an exception to the principle of non-discrimination, by making it lawfulfor immigration officers to “discriminate against another person on grounds of nationality orethnic or national origins in carrying out immigration functions” when this is authorised by aMinister; the pursuit and intensification of efforts to improve specialised teaching of English as anadditional language and to reduce the disproportionate numbers of ethnic minority pupils excluded


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from schools and to raise the latter’s education achievement; the continuation and intensificationof the drive to recruit ethnic minority teachers and to retain them in the teaching profession oncethey are recruited; the taking of measures to counter de facto ethnic and religious segregation inschools in the United Kingdom; the devotion of particular attention to tackling thedisproportionate representation of certain ethnic minority groups among the users of mental healthservices and to addressing the issue of racism and the need for more cultural awareness andsensitivity in these institutions; a lead being taken by the authorities in promoting a debate onasylum issues that is balanced and that reflects the human rights dimension of these issues; noasylum seeker be left destitute pending the examination of her or his claim; any measures taken toprovide asylum seekers with accommodation and support should not separate asylum seekers fromthe rest of society and should instead facilitate the early integration of those who will be allowedto stay, in particular children who seek asylum should not be educated separately from otherchildren, but be integrated and, if necessary, supported in mainstream schools, and that thesechildren not be separated from their families, even when the families have failed to comply withremoval orders; the elaboration of an overall strategy against Islamophobia which cuts acrossdifferent areas of life; a review of the operation of the Malicious Communication Act 1988 toensure that it constitutes an effective tool to counter hate-mail, including antisemitic hate-mail, andthat they introduce any necessary changes to this end; an extension of the legal protection againstreligious discrimination to all areas in respect of which legal protection against racialdiscrimination is currently provided; a review of legislation against terrorism in order to eliminatediscrimination in its provisions and in its implementation and an assessment of the impact oflegislation and policies against terrorism on race relations; a series of measures to address thesituation of disadvantage and discrimination faced by the Roma/Gypsy and Traveller communities,notably their inclusion in national and local ethnic monitoring systems, their mainstreaming in allhousing policies both at central and at local levels, the provision of adequate public permanent andtransit sites, the use in practice of existing opportunities for schools for integrating the teaching ofthe history or culture of Roma/Gypsies and Travellers in the school curriculum and countering theappearance of “No Travellers” or “No Caravan Dwellers” signs on public establishments; Thirdreport on the United Kingdom, CRI (2005) 27.

Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould: give greater priority to the elimination of potential discrimination in the criminal justicesystem; include the prohibition of discrimination on the grounds of age and sexual orientation inthe provision of goods and service in future legislation in this area; consider the introduction ofsingle equality legislation standardising protection across all areas; reintroduce the obligation onlocal authorities to provide caravan sites for Roma/Gypsies and Travellers; provide financialassistance for their construction to local authorities.


It was held in Wong v. Igen Ltd [2005] EWCA Civ 142, [2005] 3 All ER 812 that the effect ofamendements in to the Sex Discrimination Act 1975, the Race Relations Act 1976 and theDisability Discrimination Act 1975, introduced by s 63A, s 54A and s 17A(1C) of those Acts, wasto shift the evidential burden of proof to the respondent if the complainant proves what he wasrequired to prove at the first stage, namely, facts from which the tribunal could conclude in theabsence of an adequate explanation that the respondent has committed the unlawful act ofdiscrimination against the complainant. The tribunal is required to make an assumption at the firststage which may be contrary to reality, the plain purpose being to shift the burden of proof at thesecond stage so that unless the respondent provides an adequate explanation the complainantwould succeed. It would be inconsistent with that assumption to take account of an adequateexplanation by the respondent at the first stage, although it is possible that facts found relevant tothe first stage may also relate to the explanation of the respondent. However, it was made clear thattribunals are not required to divide the hearings into two parts to correspond with the two stages,generally they will wish to hear all the evidence, including the respondent’s explanation, before


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deciding whether the requirements at the first stage are satisfied and, if so, whether the respondenthas discharged the onus shifted to him. There may be cases where the complainant will havedifficulty in proving that it was the employer who committed the unlawful act or may have no lessdifficulty in establishing other of the essential facts but that does not mean that it is sufficient forthe complainant to prove only the possibility rather than the probability of those other facts at thefirst stage. The legislative intention is that the respondent should explain why he has done what hehas been proved by the complainant to have done, rather than the respondent having to prove thefact that it was not he who did it at all.

The Commission for Racial Equality has recommended a review by all chief officers of police inEngland ands Wales of their positive action steps with regard to the recruitment and retention ofunder-represented minority groups, the adoption of annual intake targets, the development andpublication by individual forces of race and diversity training strategies, reviews of disciplinaryand grievances procedures with regard to their impact on racial equality, the implementation ofsafeguards for police officers against racial victimisation. A formal investigation by theCommission found that the police service had made significant progress in the area of raceequality in recent years but that there was still a long way to go before there was a service whereevery officer treats the public and their colleagues with fairness and respect, regardless of theirethnic origin. It found that willingness to change at the top was not translating into action lowerdown, particularly in middle-management where you find the ice in the heart of the Police Service.It instanced the lack of proper support or full training for managers on how to handle racegrievances, so relatively minor issues are often unnecessarily escalated. The Commissionconsidered that the delicate balance in the governance of, and accountability for, policing runs therisk that 'too many cooks will spoil the broth' and it recommended that the Home Office, as thecentral co-ordinating body of all the various organisations involved in governing the policeservice, assumed overall responsibility for dealing with race equality issues. The Commission alsofound that none of the organisations complied fully with the race equality duty. Thus forces wereeither not recording the data as required by the ethnic monitoring duty or were not properlymonitoring them. It also found that few forces appeared to be carrying out full race impactassessments of their new policies; risking difficulties arising which could have been ironed outearlier; A formal investigation of the police service of England and Wales, 3 February 2005.

Reasons for concern

The inadequacy of the measures being taken to protect Roma/Gypsies and Travellers fromdiscriminatory treatment.

Fight against incitement to racial, ethnic, national or religious discrimination


Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould continue to carefully monitor the impact of the application of anti-terror powers ondisproportionately affected communities.


The House of Commons Northern Ireland Affairs Committee has identified a lack of firm andeffective leadership by the Government, the Police Service of Northern Ireland (PSNI), and thecriminal justice agencies in Northern Ireland to tackle 'hate crimes', ie, offences committed againstpeople and property on the grounds of ethnicity, sexual orientation, religion, political opinion ordisability. It noted that in recent years there has been an increase in the number of racist,


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homophobic and sectarian incidents in Northern Ireland and that hate crime against people withdisabilities, although the least well documented, are likely to be on a scale at least comparable tohomophobic incidents. The Committee considered that improvements must be made in a numberof areas: the Office of the First Minister and Deputy First Minister and the Northern Ireland Officemust improve their co-ordination of policies to counteract hate crime, publish their hate crimestrategies more quickly, and ensure that policy work is carried through into clear improvements inthe position of minority groups 'on the ground'; the PSNI must improve its clear-up rates forhomophobic and racial attacks, translate its revised hate crime policy into practice quickly, andtake all the necessary measures to build increasingly effective relationships with the minoritycommunities. The police need to improve general confidence in the reporting system, addressreasons for under-reporting, and encourage victims to come forward and report crimes. Policetraining to deal with racism, homophobia, sectarianism and disability must be improved, and allthe necessary steps to secure higher levels of recruitment from minority ethnic communities mustbe advanced; the Department of Education must ensure that its Local and Global Citizenshipinitiative is followed through vigorously, and is monitored regularly to assess its contribution tothe attitudes and behaviour of young people to hate crime; local district councils must expand theirfocus on sectarianism to encompass racism, homophobia and crimes against the disabled;enforcement authorities, particularly the PSNI and the DPP, must use the Criminal Justice(Northern Ireland) Order 2004 vigorously. There should be an early review by the PSNI and thecriminal justice agencies of the success of the new measure; the racial, homophobic and disabledsupport and community organisations, churches, and trade unions must continue their existingefforts to provide support and advice within the communities to the victims of hate crime; theminority communities must report each incident to the police as without such co-operation thiscriminal activity will go unchecked, inter-community relations will continue to deteriorate, and theunfortunate impression will be given that the problem is less severe than it is; and the press shouldkeep these dreadful attacks firmly in the public eye. The Committee was impressed by the way theNorthern Ireland Housing Executive and the Department for Social Development are adaptingtheir substantial experience of dealing with sectarian hate crime in housing to other forms of hatecrime. These measures must be accelerated and extended, particularly their pilot projects forintegrated estates. It also urged the Government to examine integrated education with renewedurgency, and to ensure that adequate funding is made available for integrated schools; TheChallenge of Diversity: Hate Crime in Northern Ireland, HC 548-I, 14 April 2005.

Reasons for concern

The climate of hostility towards asylum seekers, refugees, Muslims, Roma/Gypsies and Travellers.See also “Article 22”.

Protection of Gypsies / Roms

See above and below.



The Joint Committee on Human Rights has considered the United Kingdom's implementation ofthe Convention on the Elimination of All Forms of Racial Discrimination (“CERD”) in light of theConcluding Observations of the UN Committee on the Elimination of Racial Discrimination. Itsview was that the failure to accept rights of individual petition under Article 14 of CERD, andunder the Optional Protocol to the ICCPR, had severely hampered the ability of people fromvulnerable ethnic groups to secure some aspects of their right to equality. It recommended that:training programmes should be further developed to ensure that training in cultural awareness wasprovided to all those who might be involved in the use of restraint against people in detention; the


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establishment of an inter-departmental task force to address deaths in all forms of State custody;greater community involvement should be pursued and facilitated in the context of the RaceEquality and Community Cohesion Strategy; at local level, Gypsy and Traveller groups and localauthorities should co-operate to facilitate greater community response to consultations; thedifficulties faced by Travellers in accessing essential healthcare and education services are likelyto raise issues under Article 5(e) of CERD, by which the State undertakes to guarantee equalprotection of rights including rights to public health, medical care, social security and socialservice (Article 5(e)(iv))] and rights to education and training (Article 5(e)(v)); in light of theinequalities in the provision of accommodation for Travellers as compared to accommodation forthe settled community, the creation of a statutory duty on local authorities to provide or facilitatethe provision of accommodation, in order to fulfil the State's obligations under CERD, in particularunder Article 2.2 (positive measures to ensure equality for ethnic groups) and Article 5(e)(iii)(equality in housing). It was also concerned that the differential treatment of the homes ofTravellers permitted by the regulations made under the Planning and Compulsory Purchase Act2004 risks breach both of obligations under CERD (in particular Article 2.1(a) and Article5(e)(iii)) and of Article 14 ECHR read with Article 1 of Protocol 1 ECHR. It reiterated its concernthat the power under the Anti-Social Behaviour Act 2004 for the police to direct those trespassingon land, residing there and having more than one vehicle on the land to move to an alternativevacant site, gave rise to a significant risk of incompatibility with ECHR rights, in particular theright to respect for private life and the right to peaceful enjoyment of possessions. It alsoconsidered that, given the disproportionate impact of the measures on the Gypsy and Travellercommunity, there is a significant risk that they could be implemented in a way that is indirectlydiscriminatory in breach of CERD. These considerations should be central to implementation ofthese powers, the application of which should be monitored to ensure against discrimination; TheConvention on the Elimination of Racial Discrimination, HL 88/HC 471, 31 March 2005.

Reasons for concern

The failure to accept rights of individual petition under Article 14 of CERD, and under theOptional Protocol to the ICCPR

Article 22. Cultural, religious and linguistic diversity

Protection of religious minorities


The House of Commons Home Affairs Select Committee has reported that Muslims in Britain aremore likely than other groups to feel that they are suffering as a result of the response tointernational terrorism. It concluded that community relations had deteriorated since 9/11,although not universally and that there are positive elements. It called for much greater recognitionfor the problems of Islamophobia and anti-Semitism and for all communities to tackle them. TheCommittee considered that the Home Office should review the links between its work oncommunity cohesion and anti-terrorism. It was impressed by the energy and imagination shown bysome local councils and stressed the importance of central Government reinforcing their workthrough a strategy to explain national policy and encourage local discussion. It called uponcommunity leaders, including faith leaders, to build bridges to other communities, including bydropping defensive and reactive stances to create a climate of tolerance and mutual respect.Diversity in police forces, local government and the media was considered to be important for itsown sake, because it shows minorities are valued and because it provides role models. It noted thatpublic policy affecting British Muslims must recognise both their common identity and theirdiverse backgrounds. It did not believe that the Asian community was being unreasonably targetedby stops and searches but it accepted that Muslims perceived that they were being stigmatised bythe legislation. The Committee considered that the police and Government should make special


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efforts to reassure Muslims and the Muslim community should be involved in independentscrutiny of police intelligence. It called for detailed and accurate statistics and information onterrorism-related detentions, arrests, charges and trials. The Committee also considered that abroader anti-terrorism strategy should include measures to support British Muslim leaders to resistextremists. It rejected any suggestion that that Muslims are in some way more likely to turn toterrorism and concluded that suggestions that there had been a Government strategy to manipulatemedia coverage of terrorism were unfounded; Terrorism and Community Relations, HC 151-I, 6April 2005.

Article 23. Equality between man and women

Gender discrimination in work and employment


The House of Commons Trade and Industry Committee has found that the tendency of men andwomen to work in different occupations, and the associated tendency of predominantly femaleoccupations to be lower paid and lower valued than men's, has had a major effect on the genderpay gap in the United Kingdom; but such occupational segregation also deprived employers ofpotential recruits—a factor of particular importance in areas of skills shortages. It focussed on fourelements that contribute to occupational segregation: the lack of knowledge about career optionsthat prevents young people from choosing non-traditional occupations; difficulties in accessingtraining in atypical areas; difficulties with alien or sometimes even hostile business cultures; andthe unavailability of part-time or flexible working in the higher-paid occupations and at seniorlevels in all occupations. It found that some employers had adopted imaginative and innovativepolicies to break down occupational segregation but that employers in general seemed unaware ofthe desirability of, or at least were slow to take action on, attracting non-traditional recruits andretaining experienced staff. It commended the work of the Sector Skills Councils in spreadingawareness of the potential benefits to employers of tackling occupational segregation, and indisseminating good practice. It believed that other organisations, such as trade associations andRegional Development Agencies, should be more active in this area. The Committee called for agreater amount of co-ordination among public bodies, with a particular effort needed to ensure thatthose providing education and training and those charged with the task of getting people back intowork take the issue of occupational segregation fully into account in the advice and support theyprovide to the public. It also supported the use of procurement policy to encourage the breakdownof occupational segregation and encouraged the Government to consider a review of equal paylegislation to try to make the principle of "equal pay for work of equal value" more effective; Jobsfor the girls: The effect of occupational segregation on the gender pay gap, HC 300-I, 7 April2005.

A report by the Equal Opportunities Commission has found a ‘disturbing’ pay gap between menand women in the legal profession, ranging from £5,000 to £42,000 depending on post and careerstage, and which exists even when those working part-time are excluded. There was also acontinuing under-representation of women at equity partner level in private practice, with 60% ofmen enjoying this status but only 20% of women (Women in the legal profession in Scotland).

Reasons for concern

The continuing gender pay gap.

Remedies available to the victim of gender discrimination (burden of proof, level of penalties,standing of organisations to file suits)



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The Employment Appeal Tribunal held in Allan v. Newcastle-upon-Tyne City Council, 14 April2005 that it was not possible to make an award for injury to feelings or an award of aggravated orexemplary damages (non-economic loss) in equal pay claims under the Equal Pay Act 1970 as theexpressly contractual claim under the 1970 Act was a financial one only and the damages referredto, as compared with arrears of remuneration, being a claim in debt, were intended to relate to aclaim for damages in respect of the quantification of the loss of value of benefits not provided.

Article 24. The rights of the child



It was held in R (on the application of W) v. Metropolitan Police Commissioner [2005] EWHC1586 (Admin), [2003] 3 All ER 749 that no power to use force had been conferred by theauthorisation under the Anti-social Behaviour Act 2003, s 30(6) for a police constable in uniformwho finds between the hours of 9.00 pm and 6.00 am a person in any public place in the relevantlocality whom he has reasonable grounds for believing (a) is under the age of 16 and (b) is notunder the effective control of a parent or a responsible person aged 18 or over to remove thatperson to the person’s place of residence unless he has reasonable grounds for believing that theperson would, if removed to that place, be likely to suffer significant harm. In the court’s view thepower was permissive and not coercive and so the subsection merely conferred an express powerto use public resources to take such a young person home if he is willing to be taken home.

The Joint Select Committee on Human Rights has expressed concern that the interpretativedeclaration entered by the UK to the Optional Protocol to the Convention on the Rights of theChild on Children in Armed Conflict – in which it states its understanding that Article 1 of theOptional Protocol would not exclude the deployment of members of its armed forces under the ageof 18 to take a direct part in hostilities where: (a) there is a genuine military need to deploy theirunit or ship to an area in which hostilities are taking place; and (b) by reason of the nature andurgency of the situation: (i) it is not practicable to withdraw such persons before deployment; or(ii) to do so would undermine the operational effectiveness of their ship or unit, and thereby put atrisk the successful completion of the military mission and/or the safety of other personnel - isoverly broad, and undermines the United Kingdom's commitments under the Protocol; Review ofInternational Human Rights Instruments, HL 99/HC 264, 31 March 2005.

Article 25. The rights of the elderly

Participation of the elderly to the public, social and cultural life


Age Concern has published a NOP survey of 1,000 people which found that one in five peopleover 65 spend more than 12 hours of every day on their own. These people are more at risk ofdepression and ill-health caused by isolation and loneliness. Furthermore more than a quarter ofpeople over 65 do not have a best friend, which is higher than any other age group. A third ofpeople over 65 see their local supermarket as somewhere to socialise and get out of the house andone in five people eat their meals there rather than at home; January 2005.

Article 26. Integration of persons with disabilities


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Protection against discrimination on the grounds of health or disability


The Disability Discrimination Act 2005 has made substantial amendments to the DisabilityDiscrimination Act 1995 ("the DDA") – which contained provisions making it unlawful todiscriminate against a disabled person in relation to employment, the provision of goods, facilitiesand services, and the disposal and management of premises, as well as some provisions relating toeducation and a power to make regulations with a view to facilitating the accessibility of taxis,public service vehicles and rail vehicles for disabled people - and builds on amendments alreadymade to that Act by other legislation since 1999. Thus it brings councillors within the scope of theDDA; ensures that, with some exceptions, functions of public authorities not already covered bythe DDA are brought within its scope (so that it would be unlawful for a public authority, withoutjustification, to discriminate against a disabled person when exercising its functions); introduces anew duty on public authorities requiring them, when exercising their functions, to have due regardto the need to eliminate harassment of and unlawful discrimination against disabled persons, topromote positive attitudes towards disabled persons, to encourage participation by disabledpersons in public life, and to promote equality of opportunity between disabled persons and otherpersons; provides that the current exemption from section 19 to 21 of the DDA (which deal withthe provision of goods, facilities and services to the public) for transport services extends only totransport vehicles themselves, and create a power to enable that exemption to be lifted for differentvehicles at different times and to differing extents; amends the definition of 'rail vehicle' in Part 5of the DDA to enable rail vehicle accessibility regulations to be applied to all rail vehicles, enablethe regulations to be applied to the refurbishment of rail vehicles, clarify and extend the currentpower to grant exemptions from the requirements, change the exemption process and include arequirement for the Secretary of State to produce an annual report on the making of exemptions;introduces new provisions requiring rail vehicle accessibility compliance certificates to beobtained for prescribed rail vehicles; amends the Chronically Sick and Disabled Persons Act 1970so as to provide for the recognition in England and Wales of disabled persons' parking badgesissued outside Great Britain; amends the DDA's provision on discriminatory advertisements so asto impose liability on a third party who publishes a discriminatory advertisement as well as theperson placing the advertisement; amends the DDA in respect of group insurance arrangements;makes it generally unlawful for associations with 25 or more members to discriminate againstdisabled members, applicants for membership, associates and guests; imposes a duty to providereasonable adjustments on landlords and others who manage rented premises; confers a power tomodify or end the current small dwellings exemption; makes it unlawful for general qualificationsbodies to discriminate against disabled persons in relation to the award of prescribedqualifications; makes provision for cases where a tenant seeks consent to make an improvement toa let dwelling house to facilitate the enjoyment of the premises by a disabled occupier (whichcould include himself), including provision for the Disability Rights Commission to makeavailable a conciliation service, to provide assistance in legal proceedings in any dispute arising onthe landlord's withholding of his consent and to issue codes of practice on consent to suchimprovements; amends the definition of disability in respect of people with mental illnesses; deempeople with HIV infection, multiple sclerosis, or cancer to be disabled for the purposes of theDDA; and clarifies that there is no implied limitation to the scope of the regulation-making powerwhich enables people to be deemed to be disabled.

Positive aspects

The extended scope of the protection against discrimination on grounds of disability.

Professional integration of persons with disabilities: positive actions and employment quotas



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In an analysis from the Autumn 2004 Labour Force Survey, the Disability Rights Commissionfound that there were 6.8 million disabled people of working age in Britain, one fifth of the totalworking age population; fifty two per cent (3.5 million) are men and forty eight per cent (3.3million) are women. The analysis showed that across Britain there were regional variations in theprevalence of disability; the North East of England and Wales had the highest proportions ofdisabled people, with about one quarter of the working age population in these regions disabled –26 per cent and 24 per cent respectively, while London and the South East had lower than averageproportions of disabled people at 17 per cent. It also found that disability rates increased with age;whilst 9 per cent of adults aged 16-24 are disabled, this increases to over 40 per cent for the 50 toretirement age group. In Autumn 2004, the overall employment rate for disabled people in Britainwas 51 per cent, compared with 81 per cent for non disabled people. Employment rates variedgreatly according to the type of impairment a person has; disabled people with mental healthproblems had the lowest employment rates of all impairment categories, at only 21 per cent, whilefor people with learning difficulties, the employment rate is 26 per cent. The analysis found thatthe unemployment rate for disabled people is near twice that for non disabled people, 7 per centcompared with 4 per cent and that disabled people are three times more likely to be economicallyinactive as non disabled people, 45 per cent compared with 15 per cent but over one third ofinactive disabled people said they would like to work. It also found that disabled people inemployment are more likely to work in manual and lower occupations, and less likely to work inmanagerial, professional and high-skilled occupations. At £9.52 per hour, the average gross hourlypay of disabled employees was about 10 per cent less than that of non disabled employees (£10.43per hour) and disabled people were still only half as likely as non disabled people to be qualified todegree level and are twice as likely as non disabled people to have no qualification at all;Disability Briefing, June 2005

Reasons for concern

The high level of unemployment amongst the disabled.

Reasonable accommodations


Having regard to the fact that it was unreasonably difficult for a disabled person to make use of theservice involved in access to and use of an aiport’s ‘airside’, the airport and the airline with whichhe was travelling were found in Ross v Ryanair Ltd [2004] EWCA Civ 1751 to have discriminatedagainst him, contrary to the obligation in the Disability Discrimination Act 1995, s 21, by failingto provide him with a wheelchair free of charge for use from the check-in desk to the aircraftwhere it was reasonably practicable for them to do so, given their financial resources. It wasconsidered irrelevant whether a particular passenger might have the financial means to pay for thenecessary auxiliary aid.



The Mental Capacity Act 2005 reforms and updates the current law where decisions need to bemade on behalf of others. The Act will govern decision-making on behalf of adults, both wherethey lose mental capacity at some point in their lives, for example as a result of dementia or braininjury, and where the incapacitating condition has been present since birth. It covers a wide rangeof decisions, on personal welfare as well as financial matters and substitute decision-making byattorneys or court-appointed "deputies", and clarifies the position where no such formal processhas been adopted. It contains a set of key principles (with a presumption of capacity and a dutyalways to consider the "least restrictive option"), sets out a checklist to be used in ascertaining a


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person's best interests and sets out rules about advance decisions to refuse medical treatment. TheAct includes new rules to govern research involving people who lack capacity (the research mustbe connected with an impairing condition that affects the person participating in the research orwith the treatment of the condition and there must be reasonable grounds for believing that there isno alternative to the involvement of the person in the research, that is, it cannot be carried out aseffectively if it only involves people who have capacity) and provides for new independent mentalcapacity advocates to represent and provide support to such people in relation to certain decisions.The Act provides recourse, where necessary, and at the appropriate level, to a court with power todeal with all personal welfare (including health care) and financial decisions on behalf of adultslacking capacity. A new Court of Protection with more comprehensive powers will replace thecurrent Court of Protection, which is an office of the Supreme Court.


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CHAPTER IV. SOLIDARITY

Article 27. Worker’s right to information and consultation within the undertaking


Article 28. Right of collective bargaining and action

Social dialogue


In an Individual Observation concerning Convention No. 144, Tripartite Consultation(International Labour Standards), 1976, published in 2005, the Committee of Experts on theApplication of Conventions and Recommendations noted the Government's detailed report for theperiod ending May 2004 including its reply to the 2002 observation. The Government hadindicated that in light of comments received from the Trades Union Congress a number of changesto the format of their meetings have been introduced. The meetings are now firmly focused on themain agenda items to be addressed by the Conference or the Governing Body, and allow for a fullexchange of views as well as the early identification of areas of common interest or areas ofconcern. The Government has also held separate ad hoc meetings with the social partners. TheCommittee welcomed this approach and expressed the hope that in its next report the Governmentwill continue to report on the operation of effective tripartite consultation on the matters coveredby the Convention.

The right of collective actions (right to strike) and the freedom of the enterprise or the right toproperty and the issue of the intervention of the judiciary into collective actions


In an Individual Observation concerning Convention No. 87, Freedom of Association andProtection of the Right to Organise, 1948, published in 2005, the Committee of Experts on theApplication of Conventions and Recommendations refered to its previous request that theGovernment keep it informed of developments in respect of sections 64-67 of the Trade Union andLabour Relations (Consolidation) Act 1992, which prevent trade unions from discipliningmembers who refuse to participate in lawful strikes and other industrial action or who seek topersuade members to refuse to participate in such action. The Committee noted the informationprovided by the Government that the review of the Employment Relations Act, 1999 resulted inthe Employment Relations Act, 2004, that amends section 67 by transferring responsibility fromthe Employment Appeal Tribunal to an employment tribunal for making certain compensatoryawards and that in the current reporting period 17 tribunal complaints have been brought undersection 66. It also noted with interest that, by virtue of section 33 of the Employment RelationsAct, 2004, section 174 of the TULRA has been amended to allow unions lawfully to exclude andexpel individuals wholly or partly on the basis of conduct which consists of activities undertakenby an individual as a member of a political party. Recalling once again that unions should have theright to draw up their rules without interference from public authorities and should be able todetermine whether or not it should be possible to discipline members who refuse to comply withdemocratic decisions to take industrial action, the Committee requested the Government tocontinue to keep it informed in its future reports of any further developments concerning sections


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64-67 of the TULRA so as to more fully ensure the rights of unions to draw up their rules andformulate their programmes without government interference. In addition the Committee notedthat the Government had reported that there were no developments in respect of the treatment ofsympathy strikes under United Kingdom law and that principles of fairness and partnership atwork had resulted in more harmonious relationships and the avoidance of conflict. Furthermore theCommittee noted the Government's indication that it believed that the restrictions on secondaryand solidarity strikes reflected the United Kingdom's experiences and needs and that its strike lawgave sufficient scope for unions to protect the interests of their members. However, the Committeeonce again recalled that workers should be able to participate in sympathy strikes, provided theinitial strike they are supporting is lawful, and to take industrial action in relation to matters whichaffect them even though the direct employer may not be a party to the dispute, and it requested theGovernment to continue to keep it informed in its future reports of developments in this respect.

In another Individual Observation concerning Convention No. 98, Right to Organise andCollective Bargaining, 1949, published in 2005, the Committee of Experts on the Application ofConventions and Recommendations referred to concerns previously raised with respect toinsufficient protection for workers against anti-union discrimination, with such lack of protectionhaving harmful implications for the promotion of collective bargaining, and to its request for theGovernment to indicate any steps taken to review and amend the Trade Union and LabourRelations (Consolidation) Act 1992 (TULRA), s 146 which did not include protection for makinguse of the essential services of the union (eg, collective bargaining), and the Trade Union Reformand Employment Rights Act 1993, s 13 (which had amended section 148 of the TULRA), whichallowed an employer to wilfully discriminate on anti-union grounds, so long as another purposewas to further a change in the relationship with all or any class of employees. The Committeenoted with satisfaction the amendment by the Employment Relations Act 2004, s 31 of section 146of the TULRA, so that it is unlawful to subject a worker to detriment short of dismissal for makinguse of trade union services at an appropriate time and that the phrase "trade union services" isdefined to mean services made available to an employee by an independent trade union by virtueof his membership of the union, including an employee consenting to the raising of a matter on hisbehalf by an independent trade union of which he or she is a member. It also noted theGovernment's indication that section 31(5) of the Employment Relations Act repealed subsections(3)-(5) of section 148 of the TULRA so that detriment to employees by employers is prohibitedeven if the employer's purpose was to further a change in the relationship with all or any class ofhis or her employees.

In a Individual Direct Request concerning Convention No. 87, Freedom of Association andProtection of the Right to Organise, 1948 United Kingdom, submitted in 2005, the Committee ofExperts on the Application of Conventions and Recommendations referred to its request that theGovernment keep it informed of measures taken or intended to remedy the situation whereby dueto the restrictive definition of trade disputes, workers in practice lose the common law protectionagainst breach of employment contract and, therefore, are prevented from using an essential meansof defending their interests. The Committee noted the Government's indication that there were nodevelopments to report in this area and that it had studied the comments of unions on this matter aspart of the review of the Employment Relations Act 1999, which concluded that the law isworking adequately. The Committee recalled once again that the right to strike is an essentialmeans by which trade unions may defend their interests, and requested the Government to keep itinformed in its future reports of any developments in this regard. In addition the Committeereferred to its The Committee also referred to its request that the Government keep it informed ofthe progress and results of the review of the Employment Relations Act 1992, including on issuesthat were raised in its previous comments on the basis of observations made by workers’organizations such as UNISON in respect of pre-ballot and pre-strike notices, and in particular theinterpretation of the amendments brought to section 226A(2)(c) of the TULRA, and on issuesraised in its previous observations. The Committee observed that the review in question resulted inthe Employment Relations Act 2004, and noted with interest the following developments: (a) theextension, pursuant to sections 26-28 of the Employment Relations Act 2004, of the protected


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period for employees taking lawful industrial action by ensuring that the equivalent number ofdays during which employees are locked out by the employer are added to the basic 12-weekperiod of protection, and by defining more clearly procedural requirements on the employer; (b)the introduction by section 29 of the Employment Relations Act 2004 of a new section 145A intothe TULRA giving workers the right not to have an offer made where its sole purpose is to inducethe worker not to be, or seek to become, a member of a union, not to take part in union activities,or not to use union services ; and (c) the increase by Sections 52-54 of the Employment RelationsAct 2004 of the methods by which unions may conduct ballots and elections.

In another Individual Direct Request concerning Convention No. 98, Right to Organise andCollective Bargaining, 1949, submitted in 2005, the Committee of Experts on the Application ofConventions and Recommendations referred to its previous request to be kept informed ofprogress made in adopting draft regulations pursuant to the Employment Relations Act, 1999, s 3prohibiting blacklisting on the basis of union membership or activities. The Committee noted theinformation provided by the Government that draft regulations for consultation had been publishedin February 2003 to ban the compilation, use or dissemination of blacklists of trade unionists andthat the Government intended to finalize the draft regulations, ready for their prompt introduction,should evidence emerge of such lists being drawn up or there being a demand for them. TheCommittee noted that the Government had indicated that its consultations did not reveal anyevidence that blacklisting was reappearing, and that it considered it would be inappropriate toregulate against a practice when there is no evidence to suggest that the problem has existed forover a decade. Nevertheless, the Government had stressed that it is not complacent in this matterand, by finalizing the regulations and holding them in reserve, will be able to act swiftly should theneed arise. The Committee recalled its view that practices involving the “blacklisting” of tradeunion officials constitute a serious threat to the free exercise of trade union rights and thatgovernments should take stringent measures to combat such practices and expressed the hope thatthe Government will take the necessary steps to ensure that blacklisting of trade unionists may notbecome a problem in the United Kingdom in the future by ensuring that the practice is prohibited.The Committee requested to be kept informed of developments in this regard in the Government'sfuture reports.

In a third Individual Direct Request concerning Convention No. 135, Workers' Representatives,1971 United Kingdom, submitted in 2005, the Committee of Experts on the Application ofConventions and Recommendations noted with interest the Employment Act 2002, s 43 whichprovides, in a new section 168A of the Trade Union and Labour Relations (Consolidation) Act,1992, that employers shall permit union learning representatives to take time off during workhours for certain purposes.

Article 29. Right of access to placement services


Article 30. Protection in the event of unjustified dismissal


Article 31. Fair and just working conditions

Health and safety at work


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In an Individual Direct Request concerning Convention No. 68, Food and Catering (Ships' Crews),1946, submitted in 2005, the Committee of Experts on the Application of Conventions andRecommendations noted with interest the reports from the inspection services for the period 1998-2002 regarding the application of the Convention. In particular it noted that according to theannual report ending 31 March 1999, "marine surveyors inspected over 4,000 vessels which coverthe arrangement and cleanliness of food stores, galleys, pantries, mess-rooms and sanitaryfacilities including measures taken to minimize the risk of food and water contamination andprocedures for the disposal of waste" while in the report ending 31 May 2002 the Governmentrefers to 2,500 inspections per year. The Committee requested clarification as to the difference ininspection statistics. Furthermore it appeared from the terms of the report that there is only onemaritime Food and Hygiene Inspector (FHI) and that this person visits other inspectors to trainthem with regard to including the provisions of this Convention in their inspections but thequalitative and statistical information provided appeared to be limited to the inspections carriedout by the FHI, approximately 200 per year, and not the 4,000 carried out by marine surveyors.Moreover, it noted that there was no clear indication of the criteria and the circumstances underwhich ships that are considered “detainable” or are in fact detained. Of further interest to theCommittee were the number and the flags of ships detained for food and accommodationinfractions. As it was often the case that once the decision to detain a ship has been taken for otherreasons, in particular related to potential marine pollution, then maritime labour standardsinfractions are added to the list or are cited as recommendations, the Committee indicated that itwould appreciate further information on these points. In addition, with regard to the obligation toenforce regulations by the competent authority (Article 2 of the Convention) and, in particular, thecomplaint- generated special inspections (Article 8 of the Convention), the Committee requesteddetails of the complaints received, sanctions applied, and cases of illness attributable to food andwater contamination and waste disposal procedures. The information in the Government's reportconcerning the Legionella scare on a cruise ship provided a practical example of present dangerand preventive action taken. The Committee stated that it would appreciate other examples ofpreventive or remedial action taken by the competent authority with regard to its enforcementobligation.

In another Individual Direct Request concerning Convention No. 120, Hygiene (Commerce andOffices), 1964, submitted in 2005, the Committee of Experts on the Application of Conventionsand Recommendations noted the comprehensive report of the Government and the informationsupplied in response to its comments. It noted in particular the Government's indications on theextensive review of existing legislation which, as a result, had led to the adoption of a number ofnew regulations for the United Kingdom and Northern Ireland to implement the requirements setforth in the respective Directives of the European Community, which also give effect to thegeneral principles set forth in Articles 7 to 19 of the Convention. Referring to its previouscomments, the Committee stated that it understoods from the information contained in theGovernment's report that workers employed in domestic and offshore premises are still excludedfrom the scope of application of the legislation. It therefore invited the Government to consider thepossibility to include these groups of workers into the scope of application of the legislation at theoccasion of the next revision of the legislation. The Committee also noted the Government'sindication as to the public consultations held between November 2001 and February 2002 in theframework of the revision of the respective safety and health regulations. It further noted theGovernment's indication that the European Commission required Member States to review thislegislation every five years. The Committee, while taking due note of this information, requestedthe Government to supply information on any legislative changes which might occur and whichmight have an impact on the application of this Convention.


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Article 32. Prohibition of child labour and protection of young people at work

Protection of minors at work and monitoring of the protection


In an Individual Direct Request concerning Convention No. 138, Minimum Age, 1973 UnitedKingdom, submitted in 2005 the Committee of Experts on the Application of Conventions andRecommendations took note of the Government's first and second detailed reports. The Committeealso took note of the comments made by the Trades Union Congress (TUC) on the application ofthe Convention in the United Kingdom. It also noted with interest that the Government ratifiedConvention No. 182 on the worst forms of child labour on 22 March 2000. The Committee askedthe Government to provide further information on the Children and Young People's Unit and onthe national policies designed to ensure the effective abolition of child labour. The Committeeobserved that the law does not make it clear whether the general minimum age for admission toemployment is 14 or if paragraphs (a) and (aa) of section 18(1) of the Children and Young PersonsAct, 1933 shall be read together as to mean that the minimum age for admission to light work is 14years. The Committee further observes that pursuant to section 18(2) in fine, by-laws taken by thelocal authority authorizing: (i) the employment of children aged 13 by their parents or guardians inlight agricultural or horticultural work; (ii) the employment of children for not more than one hourbefore the commencement of school hours on any day on which they are required to attend schoolmay derogate from subsection (1) of section 18. Consequently, the Committee observed that achild irrespective of his/her age may perform work other than light work for not more than onehour before the commencement of school hours on any day. The Committee took note of thestatement of the TUC that, with regard to the employment of young people, 15 Europeandirectives and international conventions, 16 domestic acts of Parliament and statutory instrumentsare in force as well as 172 local by-laws. It also noted the TUC's comments regarding thecomplexity of many relevant legislative provisions on work permitted for school-age children andthe need for simplification. The Committee reminded the Government that, according to Article 2,paragraph 2, of the Convention, the general minimum age for admission to employment or workshall be 16 since it is the minimum age specified by the Government at the time of ratification.The Committee requested the Government to indicate whether there is any existing or envisagedlegislative provision that explicitly prohibits the employment of children before leavingcompulsory schooling, which is approximately around 16 years of age, and to supply specificreference and copy of such provision. Unless such explicit legislative provision is confirmed, theCommittee asked the Government to indicate any measures taken or envisaged to clarify the rulesand raise awareness on the contents of its national legislation on the minimum age for admission toemployment or work. The Committee noted the Government's indication, in its report, of othertypes of work which are currently prohibited or restricted in the United Kingdom for childrenbelow the age of 18 years either in legislation, approved codes of practices or health and safetyexecutives (HSE) agreements with industry. The Committee noted that the activities prohibited aredispatched in several pieces of legislation which makes it very difficult to identify the types ofwork prohibited for children under 18 years of age. The Committee also noted that the TUCwelcomes the progress made since the first draft produced by the Government in extending the listof types of work, which by their nature or the circumstances in which they are carried out, shouldbe defined as likely to jeopardize the health, safety or morals of children under 18. The TUC alsopointed out that the draft list could be more helpful to the social partners if it were to list therelevant sections of legislation and regulations. It also highlighted the need to consolidate andstrengthen child labour legislation in the United Kingdom. The TUC further expressed its concernsabout the lack of comprehensive, consolidated and nationally applied legislation, evidenced by thisextensive draft list. The Committee encouraged the Government to lay down in a singlecomprehensive text the types of employment or work which by their nature or the circumstances inwhich they are carried out are likely to jeopardize the health, safety or morals of young persons. Italso asked the Government to provide information on any progress made in this regard. The


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Committee asked the Government to indicate whether the exceptional authorization to undertakehazardous work for those aged between 16 and 18 under Regulation 19(3) of the Management ofHealth and Safety at Work Regulations and under section 124 of the Mines and Quarries Act, 1954is allowed only for work carried out in conformity with Article 6 of the Convention, whichrequires such work to be an integral part of: (a) a course of education or training for which aschool or training institution is primarily responsible; (b) a programme of training mainly orentirely in an undertaking, which programme has been approved by the competent authority; or (c)a programme of guidance or orientation designed to facilitate the choice of an occupation or of aline of training. If so, the Committee would request the Government to provide a copy of relevantrules or documents showing the practice. If not, the Committee requests the Government toprovide further information to ascertain that the conditions of exception under Regulation 19(3) ofthe Management of Health and Safety at Work Regulations fulfil the requirements contained inArticle 3(3) of the Convention, namely that: (i) the health, safety and morals of the young personsconcerned are fully protected; and (ii) that the young persons concerned have received adequatespecific instruction or vocational training in the relevant branch of activity. The Committee notedthe TUC's communication indicating that the law governing how much and what kind of workschool-age children in England and Wales carry out is too complicated and confused. It also notesthe TUC's concern about certain occupations that can be undertaken by children by virtue of by-laws listing the types of employment children may undertake. The TUC referred for instance to themodel by-laws issued by the National Assembly of Wales. It pointed out that agricultural orhorticultural work may be performed by children aged 13 or more, and indicates that it is unclearwhether these types of work fall within the definition of light work: not harmful to the health,safety and development of the child. The Committee reminded the Government that by virtue ofArticle 7(3) of the Convention, the competent authority shall determine the activities in whichemployment or work may be permitted and shall prescribe the number of hours during which, andthe conditions in which, such employment or work may be undertaken. The Committee asked theGovernment to provide information on the different by-laws listing light work, the types ofactivities usually found to be light work and whether all parts of England, Scotland and Waleshave by-laws providing for a list of light work activities. The Committee also encouraged theGovernment to ensure that these activities fall under the definition of light work laid down insection 18(2)(A) of the Children (Protection at Work) Regulations 1998. The Committee notedthat the activities listed under the Schedule to the Employment of Children Regulations (NorthernIreland), 1996 appeared to be light work but it also observed that section 135 of the Children(Northern Ireland) Order, 1995 authorized children under 16 to perform light work withoutproviding a minimum threshold age of 13. The Committee accordingly requested the Governmentto confirm that only children aged 13 and above may undertake light work. If not, the Committeeasked the Government to take the necessary measures to ensure that national legislation clearlystates that children aged 13 shall only perform light work. The Committee noted the TUC'scomments on the possibility for children aged 12 to be trained to take part in performances of adangerous character, such as acrobatics and contortionism if they are granted a licence from thelocal authority. The licence shall specify the place or places at which the person is to be trainedand shall embody such conditions as are, in the opinion of the authority, necessary for hisprotection, but a licence shall not be refused if the authority is satisfied that the person is fit andwilling to be trained and that proper provision has been made to secure his/her health and that kindtreatment is assured. The Committee reminded the Government that by virtue of Article 8 of theConvention, the competent authority may authorize children to participate in artistic performances.However, by virtue of Article 3 of the Convention, this authorization shall not lead to childrenbeing engaged in hazardous work, except for children aged 16 and above who may take part inthem under the two conditions laid down in Article 3(3) of the Convention; namely (i) that theirhealth, safety or morals are fully protected, and (ii) that they have received adequate specificinstruction or vocational training before taking part in performances of a dangerous nature. TheCommittee requested the Government to indicate the measures taken or envisaged to ensure thatchildren under 18 do not take part in dangerous artistic performances, or alternatively that theytake part in them from 16 years of age upon fulfilling the requirements of Article 3(3) of theConvention. The Committee also asked the Government to provide information on the types and


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duration of dangerous performances for which licences have been granted. The Committee notedthe Government's indication, in its report, that eight improvements notices were issued and threeprosecutions taken under the Management of Health and Safety at Work Regulations relating tooffences connected to the employment of young persons. It also observed that one prohibitionnotice was issued under the Employment of Women, Young Persons and Children Act, 1920. TheCommittee further observed that, according to a TUC survey on school age employment inEngland and Wales of 2001, approximately 75 per cent of children aged between 10 and 16 yearswork either Saturdays or Sundays, and 30 per cent work on both days. It also noted that 65 percent of children aged from 10 to 16 years work at least one weekday. However, 77 per cent ofworking children declared not to have missed school to do paid work. According to the survey,term-time jobs include paper rounds (39 per cent), baby-sitting (38 per cent), shop work (15 percent), and cleaning (14 per cent). The Committee indicated that it would be grateful if theGovernment would supply information on the types of violations noticed and the penaltiesimposed. The Committee also requested the Government to continue supplying information on themanner in which the Convention is applied in practice, including, for example, statistical data onthe employment of minors, extracts from the reports of inspection services, and information on thenumber and nature of contraventions reported.

In another Individual Direct Request concerning Convention No. 140, Paid Educational Leave,1974, submitted in 2005, the Committee of Experts on the Application of Conventions andRecommendations noted that, for the financial year ending 31 March 2003, the Learning and SkillsCouncil was responsible for an education and training budget of £7.6 million (£3.946 million foryoung people and £2.638 million for adults). According to the report, this represented a real termincrease of 5.9 per cent on the previous year and was used to finance some 6 million learners. TheCommittee requested that information continue to be provided on how the granting of paideducational leave contributes to the promotion of appropriate continuing education and training(Articles 2 and 3 of the Convention). The Committee also noted that, as from 27 April 2003, invirtue of section 43 of the Employment Act 2002, union learning representatives and members ofan independent trade union recognized by the employer have the right to be granted leave forpurposes of trade union education and it sought information on the effect given in practice tosection 43, in relation to workers who are not trade union representatives (Article 2(c) of theConvention). In relation to the Committee's question on the effective application of programmesgiving effect to the principles of lifelong learning, including the establishment of a learningnetwork distributed through new information technologies (Learndirect), it takes note of a researchreport sent by the Government, published in June 2003 by the Institute for Employment Studies,entitled “New learners, new learning: A strategic evaluation of UfI” (University for Industry)which thoroughly assesses the practice and perspectives of these learning techniques. Some of theconclusions of the report were that Learndirect has so far had more of an impact on individualsthan on organizations; it contributes to lifelong learning by engaging new learners; it leads tofurther learning progression; it helps some learners to enhance their employability and finallyLearndirect is contributing to the expansion and diversification of the learning market. Finally theCommittee took note of other useful information sent by the Government related to, inter alia,employer training pilots, which were launched in September 2002 (and due to finish in August2004) in six local learning and skills council areas to test the effect of offering financial incentivesto improve access to training and enable employees to attain basic and level-2 skills. TheCommittee requested information on the results of these measures and continue providinginformation on the practical application of the Convention.

In a third Individual Direct Request concerning Convention No. 182, Worst Forms of ChildLabour, 1999, submitted in 2005, the Committee of Experts on the Application of Conventionsand Recommendations noted that Regulation 19 of the Management of Health and Safety at WorkRegulations, 1999 places a duty on the employer to protect young persons (ie, a person under 18years of age) from risks to their health and safety and provides for a detailed list of occupationsthat young workers shall not perform. However, according to the TUC, the provisional list ofhazardous work prohibited for children under 18 was not satisfactory; it argued that underwater


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and underground work, manual handling of heavy loads, work in confined spaces, work atdangerous heights, and deep-sea fishing are not included therein. The Committee encouraged theGovernment to adopt, for the sake of clarity, a single comprehensive document compiling thetypes of work, likely to harm the health, safety or morals of children under 18. It also trusted that,when reviewing the types of hazardous work, the Government wouldl take due consideration ofthe types of work enumerated in Paragraph 3 of the Worst Forms of Child LabourRecommendation, 1999 (No. 190). The Committee noted with interest that the Health and SafetyExecutive (“HSE”), which is a governmental body responsible for ensuring that risks to people'shealth and safety from work activities are properly controlled, is engaged in qualitative researchesinto the most effective means of communicating health and safety messages to young people. Italso observed that the HSE influences vocational courses and qualifications particularly whererisks are identified in particular sectors such as woodworking. It also noted that the Governmenthas introduced health and safety and risk awareness into the national curriculum, which will besupplemented by guidance for teachers which will help them to prepare young people for workexperience and the world of work. The Committee further observed that, according to the healthand safety statistics at work, provided by the Government, the lowest rate of injury is found in theage group 16-19. Generally speaking, non-fatal injuries increases with age. The Committeeaccordingly observes that the Government's measures have a positive impact on keeping childrenout of hazardous occupations. The Committee encouraged the Government to carry on its effortsto raise young persons' awareness on health and safety measures so as to keep them out ofhazardous work. The Committee took due note of the Government's indication that there arespecific regulations in identified areas of significant risks, eg, relating to lead or ionizing radiationand agriculture. It also noted that the HSE identified key activities where attention is needed overand above the protection afforded by general regulation, including agriculture, woodworking,construction, ceramics and metalworking. The Committee however noted the lack of informationon the identification of hazardous work. The Committee accordingly requested the Government toindicate the measures taken or envisaged to identify where the types of hazardous work exist, andto provide information on the findings. The Committee also noted the Government's indication, inits report, that since 1997 there have been 14 prosecutions relating to offences connected with theemployment of young persons below the age of 18. Nine notices have been issued and eightprosecutions have been taken under the Prevention of Accidents to Children in AgricultureRegulations, 1998 since they came into force in 1999. It also observed that the Health and SafetyExecutive in the United Kingdom took forward 102 cases of illegal child employment and secured81 convictions between 1986-87 and 2001. The Committee asked the Government to provideinformation on the types of sanctions imposed by courts for the violation of the legal provisionsrelated to the worst forms of child labour.

The European Committee of Social Rights has noted that there had been no change in theinsufficiency of the mandatory rest period during the summer holidays for children still subject tocompulsory education because it did not equal half the holiday period and it concluded that thesituation in the United Kingdom was not in conformity with Article 7(3) ESC on the ground that itdid not ensure that children might fully benefit from such education; Conclusions XVII-2.

The European Committee of Social Rights has also concluded that the situation in the UnitedKingdom was not in conformity with Article 7(5) ESC on the ground that there was no evidencethat, during the reference period, young workers’ lowest wages were fair compared to adultworkers’ minimum wages, which were themselves unreasonably low compared to the averagewage in industry and services (the minimum wage of 1,076€ was 34.4% of the average wage). Asfrom 1 October 2004 a minimum hourly wage of 4.36€ (62% of the adult minimum wage) hadbeen introduced for 16-17 year old workers; Conclusions XVII-2.

Reasons for concern

The inadequacy of the lowest wages payable to young workers.


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Article 33. Family and professional life

Parental leaves and initiatives to facilitate the conciliation of family and professional life


The European Committee of Social Rights has concluded that, in the absence of a compulsoryperiod of six weeks post natal leave (of the twenty-six weeks maternity leave only two weeks postnatal was compulsory except in the case of factory workers for whom the compulsory period isfour weeks), the situation in the United Kingdom was not in conformity with Article 8(1) ESC.The Government had maintained that in practice nearly all women availed themselves of six weekspost natal leave. The Committee also concluded that the situation was not in conformity withArticle 8(1) in that the standard rates of Statutory Maternity Pay and Maternity Allowance wereinadequate during the reference period; Conclusions XVII-2.

Article 34. Social security and social assistance



In Secretary of State for Work and Pensions v. Bobezes [2005] EWCA Civ 111, [2005] 3 All ER497, it was held that the Income Support (General) Regulations 1987, reg 16(5) - which providedthat a child was not to be treated as a member of the same household where the child was notliving with the income support claimant and he or she had been continuously absent from GreatBritain for a period of more than four weeks - indirectly discriminated on grounds of nationality.The Court of Appeal considered that the proper approach was to compare the children of migrantworkers with British children whose families were normally resident in the United Kingdom and itconcluded that it was intrinsically likely that significantly more of the latter would be prejudicedby regulation 16(5). Moreover in view of the greater proximity of the families of Europeanmigrant workers than those from the Caribbean or India, it was in any event probable that theformer rather than the latter were more likely to be discriminated against by regulation 16(5).

The Child Benefit Act 2005 deals with a non-contributory, non-income related benefit payableweekly where a person is responsible for a child. It is not taxable. The Act contains measuresregarding the conditions of entitlement to child benefit provided for in Part 9 of the Social SecurityContributions and Benefits Act 1992 and in Part 9 of the Social Security Contributions andBenefits (Northern Ireland) Act 1992. The Act amends the definition of a child by replacing it witha definition of a child and a definition of a qualifying young person. Under the new provisions achild is defined as a person who has not attained the age of 16. A qualifying young person isdefined as a person, other than a child, who has not attained the age (greater than 16) that isprescribed in regulations, and who satisfies prescribed conditions. It is the intention that in the firstinstance regulations under the powers introduced by the Act should extend child benefitentitlement to include young people who are on specified unwaged vocational training arranged bythe Government as well as those in full-time, non-advanced education. The Government alsointends to extend support to 19 year olds completing a course of learning begun before theyreached that age. Future changes to the scope of entitlement will respond to developments incurriculum policy and further consultation.

Positive aspects


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The plans to extend the payment of child benefit to include young people on unwaged vocationaltraining or in full-time advanced education.

Article 35. Health care

Drugs (regulation, decriminalisation, substitutive treatments)


The Drugs Act 2005 gives the police a new discretionary power for the police to require personswho have reached the age of 18 and who have tested positive for a specified Class A drug to attendan initial assessment of their drug misuse. The Drugs Act 2005 has also amended the Crime andDisorder Act 1998 in relation to Anti-social Behaviour Orders (ASBOs), providing for a new orderwhich can be made alongside an ASBO when drug misuse has been a cause of the behaviour thatled to the ASBO being made. The requirements of the order should avoid, as far as reasonablypracticable, interfering with the defendant's religious belief and any work or educationalcommitments. See also “Article 4”.



The Smoking, Health and Social Care (Scotland) Act 2005 makes provision for a ban on smokingin certain wholly or substantially enclosed places. This effected by creating an offence ofpermitting others to smoke in and on no-smoking premises; creating an offence of smoking in no-smoking premises; creating an offence of failing to display warning notices in no-smokingpremises; setting out the powers of enforcement officers to enter no-smoking premises; creating anoffence of failing without reasonable excuse to give one's name and address on request by anauthorised officer. The Act also enables Scottish Ministers to raise by order the ages specified(currently age 16) in section 18 of the Children and Young Persons (Scotland) Act 1937, whichincludes the legal age for tobacco purchase.

Article 36. Access to services of general economic interest


Article 37. Environmental protection

Right to a healthy environment


The Clean Neighbourhoods and Environment Act 2005 develops the powers and duties in Englandand Wales for dealing with problems associated with local environmental quality. In particular itamends the law relating to crime and disorder reduction partnerships to require them to take intoaccount anti-social and other behaviour adversely affecting the local environment; makesprovision for the gating (ie, erecting a physical barrier to restrict public access) of minor highwaysthat attract anti-social behaviour; introduces two new offences relating to nuisance parking andamends the law relating to abandoned and illegally parked vehicles; extends the statutory offence


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of dropping litter to all open places; amends the powers and duties of local authorities in relationto litter; amends the law relating to graffiti, fly-posting and the illegal display of advertisements;makes provision about the illegal deposit of waste (“fly-tipping”) and about the powers and dutiesof local authorities to collect and dispose of waste; makes provision to deal with waste generatedat construction sites; allows local authorities and parish and community councils to create offencesrelating to the control of dogs; gives local authorities new powers to deal with noise from intruderalarms; extends the powers for dealing with night time noise nuisance from domestic premises tocover also licensed premises; allows local authorities to employ alternative means to resolvecomplaints about noise qualifying as a statutory nuisance prior to issuing an abatement notice;establishes a statutory body to take the place of a non-departmental public body, the Commissionfor Architecture and the Built Environment.

The House of Commons Select Committee on Environmental Audit has reported that theenvironmental impacts of the proposed increase in house building deserve much greaterconsideration than they have yet received from Government. It believed that all new housingshould be built to standards that minimise environmental impacts. Furthermore it considered thatthere was a serious risk that, as matters stand, the principal beneficiaries of housing growth will beproperty development companies, whilst the principal loser will be the environment. It concludedthat large scale house building demands prudence, properly joined-up government, thoroughenvironmental appraisals, a respect of environmental limits, local engagement, and improvementsin skills, knowledge and awareness. While there was a need for sustainable communities and newsustainable housing, they would never be truly sustainable unless they were environmentallysustainable; Housing: Building a Sustainable Future, HC 135-I 31 January 2005.

The right to access to information in environmental matters

See “Article 47”.

Article 38. Consumer protection



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CHAPTER V. CITIZEN’S RIGHTS

Article 39. Right to vote and to stand as a candidate at elections to the European Parliament


Article 40. Right to vote and to stand as a candidate at municipal elections

Right to vote and to stand as a candidate to municipal elections for third country nationals

A violation of the right to free elections under Protocol 1, Article 3 ECHR was confirmed (12-5) inEur.Ct.H.R. (GC) Hirst v. the United Kingdom (No. 2) (Appl. no 74025/01) judgment of 6 October2005 on account of a blanket ban in the Representation of the People Act 1983, s 3 on convictedprisoners voting in parliamentary or local elections. It was accepted that restrictions on electoralrights might be imposed on an individual who had, for example, seriously abused a public positionor whose conduct threatened to undermine the rule of law or democratic foundations but it wasemphasised that the severe measure of disenfranchisement was not to be undertaken lightly and theprinciple of proportionality required a discernible and a sufficient link between the sanction andthe conduct and circumstances of the individual concerned. Although the present measure mighthave the legitimate aim of preventing crime, a general, automatic and indiscriminate restriction ona vitally important right - which applied automatically to convicted prisoners in prison,irrespective of the length of their sentence and irrespective of the nature or gravity of their offenceand their individual circumstances - had to be seen as falling outside any acceptable margin ofappreciation, however wide that margin might be, and as being incompatible with Prot 1, Art 3.

Article 41. Right to good administration

This provision of the Charter will only be analysed in the Report dealing with the law andpractices of the institutions of the Union.

Article 42. Right of access to documents


Article 43. Ombudsman

This provision of the Charter will only be analysed in the Report dealing with the law andpractices of the institutions of the Union..

Article 44. Right to petition



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Article 45. Freedom of movement and of residence


On a reference to the ECJ in the course of an appeal against a refusal to grant a long-termresidence perrmit to the child of a mother (who was a national of China) where the child, as aresult of being born in the territory of Northern Ireland was automatically entitled to, and hadacquired, Irish nationality, it was ruled in Case C-200/02, Chen v. Secretary of State for the HomeDepartment [2004] ECR I-9925 that art 18 EC and Council Directive (EEC) 90/354 conferred onboth the young minor - who was a national of a member state, who was covered by appropriatesickness insurance, and whose primary carer was a third-country national having sufficientresources for the minor not to become a burden on the public finances of the host member state -and the minor’s primary carer a right to reside for an indefinite period in that host state. This rightwas not subject to any condition that the resources required to avoid becoming such a burden hadto be possessed personally by the minor. Furthermore it was irrelevant that the purpose of themother’s stay in the United Kingdom had been to create a situation in which the child she wasexpecting would acquire the nationality of another member state in order to secure for her childand for herself a long-term right to reside in the United Kingdom. Moreover it was not permissiblefor a member state to restrict the effect of the grant of the nationality of another member state byimposing an additional condition for recognition of that nationality with a view to the exercise ofthe fundamental freedoms provided for in the Treaty. A refusal to allow a parent, whether anational of a member state or a national of a non-member country, who was the carer of a child towhom art 18 EC and the directive granted a right of residence, to reside with that child in the hostmember state would deprive the child’s right of residence of any useful effect since enjoyment bya young child of a right of residence necessarily implied that that child was entitled to beaccompanied by the person who was his or her primary carer.


The use of an anti-social behaviour order under the Crime and Disorder Act 1998, s 1, whereby theperson subject to it was prohibited for a period of two years against his being in any other placveother than a certain specified addresses, or moving between those addressed, between 11.30 pmand 6.00 am, was held in R (on the application of Lonergan) v. Lewes Crown Court [2005] EWHC457 (Admin), [2005] 2 All ER 362 not to be legally objectionable if it were necessary forprotection. Because the content and duration of such an order was conditioned solely by what wasnecessary for the purpose of protecting members of the public from further anti-social behaviour,the court was not required to consider what sentence would have been imposed, whether by way ofcurfew order or otherwise, if it had been sentencing the same person for one or more of the sameacts which justified the making of an order. It was observed that, although an order has to run for aminimum of two years, it does not follow that each and every prohibition within a particular ordermust endure for the life of the order and, as a curfew for two years in the life of a teenager is avery considerable restriction of freedom, it is likely that in many cases either the period of thecurfew can properly be set at less than the full life of the order or that, in the light of behaviouralprogress, an application to vary the curfew may well succeed.

Article 46. Diplomatic and consular protection



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CHAPTER VI. JUSTICE

Article 47. Right to an effective remedy and to a fair trial

Access to a court and, in particular, the right to legal aid / judicial assistance


The denial of legal aid to two unemployed defendants in defamation proceedings in respect ofclaims made in a leaflet against a large multinational company – where the trial at first instancehad lasted 313 court days, preceded by 28 interlocutory applications, the appeal hearing had lasted23 days, the factual case which they had had to prove had been highly complex, involving 40,000pages of documentary evidence and 130 oral witnesses and extensive legal and procedural issueshad to be resolved before the trial judge was in a position to decide the main issue - was found inEur.Ct.H.R. (4th sect.) Steel and Morris v. United Kingdom (Appl. no 68416/01) judgment of 15February 2005 to have deprived them of the opportunity to present their case effectively before thecourt and contributed to an unacceptable inequality of arms with the company. It was consideredthat in an action of this complexity, neither the sporadic help given by the volunteer lawyers northe extensive judicial assistance and latitude granted to the applicants as litigants in person, wasany substitute for competent and sustained representation by an experienced lawyer familiar withthe case and with the law of libel. Indeed the very length of the proceedings was, to a certainextent, a testament to the applicants’ lack of skill and experience and there had, therefore, been aviolation of Article 6(1) ECHR. Violations of Article 10 ECHR were also found to arise out ofboth this lack of procedural fairness and equality and the absence of a reasonable relationship ofproportionality between the injury to reputation suffered and the award of damages of GBP 36,000in the case of the first applicant and GBP 40,000 in the case of the second applicant.

The provision in the Crown Proceedings Act 1947, s 10 that no act or omission of a member of thearmed forces of the Crown while on duty should subject either that person or the Crown to liabilityin tort for causing personal injury to another member of the armed forces while on duty wasconsidered not to have removed a class of claim from the domestic courts’ jurisdiction or to haveconferred an immunity from liability which had been previously recognised since such a class ofclaim had never existed and was not created by the 1947 Act. As section 10 was found therefore tobe a provision of substantive law which delimited the rights of servicemen as regards damages’claims against the Crown and which provided instead, as a matter of substantive law, a no-faultpension scheme for injuries sustained in the course of service, the applicant in Eur.Ct.H.R. (GC)Roche v. the United Kingdom (Appl. no 32555/96) judgment of 19 October 2005 was found (9-8)to have no (civil) “right” recognised under domestic law which would attract the application ofArticle 6(1) and so it was not necessary to examine submissions as to the proportionality of therestriction on his ability to bring a civil action in respect of health problems that he maintainedwere the result of his participation in mustard and nerve gas tests conducted under the auspices ofthe British Armed Forces at the Chemical and Biological Defence Establishment at Porton DownBarracks (England) in 1962 and 1963. However, it was considered that an individual, such as theapplicant, who had consistently pursued disclosure of information relevant to his test participationindependently of any litigation, should not have been required to litigate to obtain disclosure.Although a structured disclosure process was required, the various “medical” and “political”means available in the applicant’s case had resulted only in partial disclosure. In addition,information services and health studies had only been started almost 10 years after the applicanthad begun his search for records and after he had lodged his application with the Court. In suchcircumstances, the Court considered that the United Kingdom had not fulfilled its positiveobligation to provide an effective and accessible procedure enabling the applicant to have access toall relevant and appropriate information which would allow him to assess any risk to which he hadbeen exposed during his participation in the tests and there had therefore been a violation of his


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right to respect for private and family life under Article 8 ECHR. However, while the freedom toreceive information under Article 10 ECHR prohibited a Government from restricting a personfrom receiving information that others wished or might be willing to impart, that freedom couldnot be construed as imposing on a State, in circumstances such as those of the applicant’s case,positive obligations to disseminate information and there had therefore been no interference withthe applicant’s right to receive nformation. No violation was also found in respect of Articles 13and 14 or Protocol 1 Article 1.

The Committee of Ministers has adopted a resolution (ResDH(2005)111, 26 October 2005) withrespect to the measures taken to ensure compliance with the judgments in Eur.Ct.H.R. (4th sect.)Broadhurst v. United Kingdom (Appl. no 69187/01) judgment of 22 June 2004 (FriendlySettlement), Eur.Ct.H.R. (4th sect.) Edwards v. United Kingdom (Appl. nos 38260/97, 46416/99,47143/99, 46410/99, 58896/00 and 3859/02) judgment of 16 November 2004 (FriendlySettlement) and Eur.Ct.H.R. (4th sect.) Townsend v. United Kingdom (Appl. no 42039/98)judgment of 18 January 2005 (Friendly Settlement) (see below), which concerned complaintsrelating to the lack of legal representation in proceedings for non-payment of poll-tax anddetention ordered by the Magistrates Court, namely, the payment to the applicants of certain sumsfor non-pecuniary damage. The Committee recalled that general measures had already beenadopted in particular through the amendment by the Lord Chancellor of the Legal Advice andAssistance (Scope) Regulations 1989 by the Legal Advice and Assistance (Scope) (Amendment)Regulations 1997.

Violations of Article 6(1) & (3)(c) ECHR were found in Eur.Ct.H.R. Beet and Others v. the UnitedKingdom (Appl. nos 47676/99, 58923/00, 58927/00, 61373/00 and 61377/00), Lloyd and Others v.the United Kingdom (Appl. nos 29798/96, 30395/96, 34327/96, 34341/96, 35445/97 36267/97,36367/97, 37551/97, 37706/97, 38261/97, 39378/98, 41590/98, 41593/98, 42040/98, 42097/98,45420/99, 45844/99, 46326/99, 47144/99, 53062/99, 53111/99, 54969/00, 54973/00, 54997/00,55046/00, 55068/00, 55071/00, 56109/00, 56231/00, 56232/00, 56233/00, 56429/00, 56441/00,2460/03, 2482/03, 2483/03, 2484/03 and 2490/03) judgments of 1 March 2005 on account of thelack of legal representation in proceedings for non-payment of poll-tax and detention ordered bythe Magistrates Court. Violations of Article 5(1) & (5) were also found in Beet and LLoyd. Therewere also friendly settlements in respect of similar complaints in Eur.Ct.H.R. Townsend v. UnitedKingdom (Appl. no 42039/98) and Eur.Ct.H.R. Mark Wood v. United Kingdom (Appl. no 47441/99)judgments of 1 March 2005.

The Committee of Ministers has adopted a resolution (ResDH(2005)29, 25 April 2005) withrespect to the measures taken to ensure compliance with the judgment in Eur.Ct.H.R. (GC) Hatton& others v. the United Kingdom (Appl. no 36022/97) judgment of 8 July 2003 in which it wasfound that there was effective domestic remedy in respect of a complaint that government policyon night flights at Heathrow airport gave rise to a violation of their right to respect for their privateand family lives and their home. Information provided by the United Kingdom Government aboutthe measures taken preventing new violations of the same kind as that found in the judgmentcomprised the empowerment of the courts to conduct judicial review of administrative policies(including those dating from before the enactment of the Human Rights Act 1998) in accordancewith the ECHR’s requirements, the publication of the judgment in the European Human RightsReports at (2003) 37 EHRR 28 and its wide circulation to relevant officials within the government.


Provisions in the Child Support Act 1991, s 4 which precluded a person with care of children fromplaying any part in the enforcement of maintenance assessments, with the responsibility forenforcement being placed on the Secretary of State and through him on the child support agency,were held (Baronness Hale of Richmond dissenting) in R (on the application of Kehoe) v Secretaryof State for Work and Pensions [2005] UKHL 48, [2005] 4 All ER 905 not to engage the right ofaccess to court under Article 6(1) ECHR as the claimant was not seeking to enforce a ‘right’


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according to the autonomous meaning given to that word. It was not considered enough to bringArticle 6(1) into play to assert that, as the whole object of the scheme of the 1991 Act was that thepersopn with care was the person who would ultimately benefit from the enforcement process, aperson in the position of the claimant should be allowed a say in how that process was conducted.

The House of Commons Constitutional Affairs Committee has found that the small claims system,which operates in the county court, generally works well in providing a low cost, good qualityprocedure for large numbers of litigants. The procedure is informal and quicker than ordinaryproceedings, assisting litigants to appear in person by providing greater judicial intervention andsupporting and enabling people to avoid incurring substantial legal costs in order to pursue smallmonetary claims. However, it also identified a number of deficiencies and some potential forimprovements: the county courts are still lacking proper IT facilities and they rely on a paper-intensive system, which makes proceedings slower and leads to unnecessary waste; it was time toimplement much sought-after improvements to the system of enforcing judgments as litigantsoften find that the judgment that they have obtained is in a practical sense unenforceable; and theclaims limits for cases involving personal injury and housing disrepair - currently substantiallylower than those for other claims which go through the small claims procedure - are in need ofreview. It also concluded that current proposals for a European Small Claims Procedure shouldprove a welcome improvement for those conducting cross border cases, but considered that thissystem should not extend to wholly domestic cases; The courts: small claims, HC 519, December2005.

Independence and impartiality


A challenge by four prisoners to the independence and impartiality of the adjudicating body (theprison governor or the controller) in disciplinary proceedings has ben upheld in Eur.Ct.H.R. (4th

sect.) Whitfield and Others v. the United Kingdom (Appl. nos 46387/99, 48906/99, 57410/00 and57419/00) judgment of 12 April 2005 on the basis that persons answerable to the Home Office(whether as prison officer, governor or controller in the applicants’ prisons) drafted and laid thecharges against the applicants, investigated and prosecuted those charges and determined theapplicants’ guilt or innocence together with their sentences. In addition to this finding of aviolation of Article 6(1) ECHR, a violation of Article 6(3)(c) ECHR was found as a result of thedecision of the adjudicating body that legal representation for each applicant’s adjudicationhearing was unnecessary and, moreover, that one of them did not even need to consult his lawyerbefore his hearing.


The Constitutional Reform Act 2005 makes provision for modifying the office of Lord Chancellor(a member of the executive) so that the office-holder is no longer a judge nor exercises any judicialfunctions; provides a guarantee of continued judicial independence; makes provisions for aSupreme Court to replace the existing system of Law Lords operating as a committee of the Houseof Lords and provides for the appointment of judges to the new Court (selection commissionscomprised of judicial and non-judicial members, with the Lord Chancellor able to reject theselection commission's recommendation or to ask it to reconsider its recommendation; consistentlywith the position of all senior judicial office holders, removal from office of any judge of theSupreme Court may only be effected following resolutions passed by both the House of Commonsand the House of Lords.); creates an independent Judicial Appointments Commission to selectpeople for all other judicial appointments in England and Wales (it will be comprised of a layChairman and five other lay members, five judicial members, two legal professionals, a tribunal


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member and a lay magistrate; the Lord Chancellor will either appoint or recommend forappointment the selected candidate, or will have the ability to reject a candidate, once, and to askthe Commission to reconsider, once), and provides for judicial discipline in England and Wales;makes provision about the supply of information to the existing Northern Ireland JudicialAppointments Commission, creates a Northern Ireland Judicial Appointments Ombudsman, andprovides a mechanism for the removal of judicial office holders in Northern Ireland

In quashing the convictions in a case in which the judge, after having received a letter from one ofthe jurors while the jury were considering their verdict stating that a certain group of jurors hadbeen badgering, coercing and intimidating other jurors into changing their verdicts, had given afurther direction to the jury including an exhortation not to be bullied or cajoled into a verdict withwhich they did not agree and referring to the burden of proof and adjuring them to decide the caseon the evidence without speculatingit was held in R v. Smith [2005] UKHL 12, [2005] 2 All ER 29that in the instant case there had been no obligation in law on the judge to question the jurors aboutthe contents of the letter and it would not have been appropriate for him to have done so as, had hegone into the allegations, he would inevitably have had to question the jury about the subject oftheir deliberations. Moreover, where, as in the instant case, the letter alleged wilful misconduct onthe part of certain jurors and deliberate disregard of the judge’s directions on the law, the prospectsof obtaining satisfactory answers to the questioning would have been limited and questioningjurors, even were that within legitimate bounds, would have been likely to have made the situationworse rather than better.While it was legitimate to decide to choose to give the jury a furtherdirection rather than discharge it, the direction given in the instant case had not contained therequired strong warning that the jury had to follow the judge’s directions on the law, adhere to theevidence without speculation and decide on the verdicts without pressure or bargaining. It wasthus difficult to be satisfied that the discussion in the jury room had henceforth been conducted inthe proper manner.

The process of trying a soldier for an offence under Part II of the Army Act 1955 by way ofsummary dealing by his commanding officer was held in Baines v. Army Prosecuting Authority[2005] EWHC 1399 (Admin) to be compatible with Article 6 ECHR as a result of the introductionby s 76AA of the right to be tried de novo by a court-martial or by the Army Summary AppealCourt and the possibility of making a free and unrestrained choice to elect the former rather thanthe summary trial and the latter if a finding was made against the soldier on a summary dealing.These changes were considered to distinguish the case from the situation in Eur.Ct.H.R. (4th sect.)Thompson v. United Kingdom (Appl. no 36256/97) judgment of 15 June 2004, in which thesummary dealing procedure was found to be in breach of art 6.

Positive aspects

The arrangements for judicial appointments in the Constitutional Reform Act 2005, which havethe potential to reinforce judicial independence and establish a clearer separation of powersbetween the executive and the judiciary.

Publicity of the hearings and of the pronouncement of the decision


Although, pursuant to the Mental Health Review Tribunal Rules 1983, r 21(1), a mental healthtribunal was to sit in private unless the patient requested a hearing in public and the tribunal wassatisfied a hearing in public would not be contrary to the interests of the patient, it was held in R(on the application of Mersey Care NHS Trust) v. Mental Health Tribunal [2004] EWHC 1749(Admin), [2005] 2 All ER 820 that a tribunal was not necessarily required to sit in public wherethe two prerequisities in r 21(1) were satisfied. In the present case the concerns raised before thetribunal as to (a) the nature and extent of the patient’s understanding about the likely impact of his


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request for a public hearing and (b) the patient’s safety at a public hearing and the clinical impacton his condition of the security required were relevant to the determination of whether a publichearing would be contrary to his interests and were accordingly a factor that the tribunal shouldhave considered in the exercise of its discretion. In addition it was noted that, although a tribunalcould by virtue of r 21(5) control the extent to which any information was made public whetherthe hearing was in public or private, a tribunal’s powers to limit press reporting and publicity if ahearing was held in public was significantly more limited than they were if it were held in privatebecause the protection afforded by the strict liability rule would be only for a limited period andbecause of the difficulty of determining in advance what kind of public comment aboutproceedings would create a substantial risk that the course of injustice would be seriously impededor prejudiced.

The Serious Organised Crime and Police Act 2005 disapplies automatic reporting restrictions forbreaches, committed by children and young persons, of anti-social behaviour orders and ordersmade under sections 1B and 1C of the Crime and Disorder Act 1998 but the court will retaindiscretion to apply reporting restrictions.

Reasonable delay in judical proceedings


A violation of Article 6(1) ECHR was found in Eur.Ct.H.R. (3rd sect.) Yetkinsekerci v. the UnitedKingdom (Appl. no 71841/01) judgment of 20 October 2005 as a result of the appeal stage ofproceedings against the applicant, who had been convicted of knowingly being involved in theattempted import of a controlled drug (diamorphine), having lasted for just under three years.


In dismissing an appeal against a tribunal ruling in favour of a complaint of race discriminationagainst an employer on account of the delay - seventeen months - in promulgating it, it was held inBangs v. Connex South Eastern Ltd [2005] EWCA Civ 14, [2005] 2 All ER 316 that there mightbe exceptional cases in which unreasonable delay in a tribunal promulgating its decision couldproperly be treated as a serious procedural error or material irregularity giving rise to a question oflaw in the ‘proceedings before the tribunal and would thus fall within the right of appeal under theEmployment Tribunals Act 1996, s 21(1). However, in the instant case it was not possible tocharacterise the decision as perverse as a result of the unreasonable delay, and the delay inpromulgating it had not created a real risk that the employer had been deprived of the benefit of afull and fair trial.



In dismissing appeals against the making of confiscation orders following convictions forconspiracy to cheat the Revenue where the judge had (a) taken account, for the purpose ofdetermining whether the defendants had withheld some of their realisable assets from view, ofinformation disclosed by the prosecution other than anything revealed to him which had attractedpublic interest immunity and (b) had declined to apportion between the relevant conspirators theVAT which the relevant company had obtained but had found that the amount of benefit which aparticular defendant was to be treated as having obtained from the offence was the value of theVAT of which the Revenue had been cheated by any corporate entity in respect of which thedefendant had, at the material time, been in a controlling position, it was held in R v. May [2005]EWCA Crim 97, [2005] 3 All ER 523 that the test was fairness and a judge was neither obliged to


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recuse himself nor to appoint special counsel where he was confident that he could put undisclosedmaterial - which he had seen but which was covered by public interest immunity - out of his mindfor the purposes of a later decision. Furthermore, while the requirements of Protocol 1, Article 1ECHR might in some circumstances lead the court to adopt an apportionment approach, that wasnot so in the circumstances of the present case where the total value of the confiscation orders hadbeen well below the amount of the VAT of which the Revenue had been cheated.

In Polanski v. Condé Nast Publications Ltd [2005] UKHL 10, [2005] 1 All ER 945 it was held(Lords Slynn and Carswell dissenting) that the administration of justice would not be brought intodisrepute by allowing a claimant to give his evidence from France by means of a video conferencelink when he did not wish to come to the United Kingdom to give oral evidence in person at thetrial of his action as he was a fugitive from justice in the United States and did not wish to run therisk of being extradited. It was considered that a fugitive from justice,.despite his status, wasentitled to invoke the assistance of the court and its procedures in protection of his civil rights andhe should therefore be able to have recourse to a procedural facility flowing from a technologicaldevelopment readily available to all litigants.

Guidance on the approach to the award of damages in cases involving violations of Article 6ECHR was given in R (on the application of Greenfield) v. Secretary of State for the HomeDepartment [2005] UKHL 14, [2005] 2 All ER 240, a case in which the Secretary of Stateaccepted that he had acted unlawfully by failing to provide a prisoner with a hearing before anindependent tribunal and by refusing to allow him to be legally represented in the determination ofa drugs offence contrary to the prison rules, as a result of which he was ordered to serve additionaldays of imprisonment. It was emphasised that a finding of a violation, even where judged not toafford the applicant just satisfaction, would be an important part of his remedy and an importantvindication of the right he had asserted. Secondly the purpose of incorporating the ECHR indomestic law through the Human Rights Act 1998 had not been to give victims better remediesthan they could recover in the ECHR but to give them the same remedies without the concomitantdelay and expense. Thirdly s 8(4) of the 1998 Act required a domestic court to take into accountthe principles applied by the European Court of Human Rights under Article 41 ECHR not only indetermining whether to award damages but also in determining the amount of the award. Domesticjudges should not aim to be significantly more generous than the European Court might have beenexpected to be in a case where it was willing to make an award at all. In the instant case it was heldthat the finding in the claimant’s favour afforded just satisfaction and there was no special featurewhich warranted an award.

Following the ruling in Eur.Ct.H.R. (GC) Ezeh and Connors v. United Kingdom (Appl. nos

39665/98, 40086/98) judgment of 9 October 2003 that certain disciplinary adjudications faced byprisoners constituted the determination of a criminal charge within Article 6 ECHR, the Secretaryof State for the Home Department had generally remitted the award of additional days ofimprisonment imposed by prison governors following such adjudications. However, it was held inR (on the application of Napier v. Secretary of State [2004] EWHC 936 (Admin), [2005] 3 All ER78 that a prisoner whose award of additional days for an assault on a prison officer had beenremitted was not entitled to have his finding of guilt also quashed as, stripped of its penalconsequences, it fell properly to be analysed as an administrative finding of fact. The finding wasconsidered not to involve the stigma of a conviction and to be something that could be legitimatelyused in the making of sensible and informed decisions regarding the prisoner’s management inprison. It was also considered that the the Secretary of State had acknowledged the breach of theprisoner’s rights under the ECHR and that sufficient redress had been afforded to him by theremission of the sentence.

The Public Services Ombudsman (Wales) Act 2005 establishes the office of the Public ServicesOmbudsman for Wales and makes provision for the Ombudsman to investigate those matters thatuntil now were investigated by the Welsh Administration Ombudsman, the Health ServiceCommissioner for Wales and the Social Housing Ombudsman. The Ombudsman will have


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responsibility for investigating maladministration and service failure by the Assembly, itssponsored public bodies and a number of other publicly funded bodies, Welsh health servicebodies (primarily NHS Trusts and Local Health Boards in Wales), certain health service providers,local government bodies and social landlords, providing a unified ombudsman service in Wales.

Article 48. Presumption of innocence and right of defence

Presumption of innocence


The Drugs Act 2005 amends section 5 of the Misuse of Drugs Act 1971 to create a presumption ofintent to supply where the defendant is found to be in possession of a particular amount ofcontrolled drugs; where the presumption applies a court or jury must assume that the defendantintended to supply the drugs. The presumption does not apply if evidence is adduced, by anyperson, that raises an issue that the defendant may not in fact have intended to supply those drugs.Where such evidence is raised it will be for the prosecution to prove beyond reasonable doubt thatthe defendant intended to supply the drugs in his possession. The particular amount of drugs thatwill give rise to the presumption will be prescribed by the Secretary of State in regulations. Thelevels will reflect and be proportionate to the seriousness of the offence of supply of a controlleddrug.

The rules governing the evidence in criminal matters


The special problems of investigating crime in Northern Ireland was held in Eur.Ct.H.R. (4th sect.)Shannon v. the United Kingdom (Appl. no 6563/03) judgment of 14 October 2005 not to warrantthe coercive measures imposed on the applicant, who had already been charged with falseaccounting and conspiracy to defraud, by the Proceeds of Crime (Northern Ireland) Order 1996,whereby he was fined for failing, without a reasonable excuse, to comply with the financialinvestigator’s requirement to attend an interview and answer questions. In addition, it was heldthat the applicant’s attendance at the interview might well have required him to give informationon matters which could have arisen in the criminal proceedings for which he had been charged. Itwas therefore concluded that the requirement for the applicant to attend the interview and to becompelled to answer questions in connection with events in respect of which he had already beencharged with offences was not compatible with his right not to incriminate himself and was thus aviolation of Article 6(1) ECHR.


The jury were held in R v. Mushtaq [2005] UKHL 25, [2005] 3 All ER 885 to have beenmisdirected where the judge, after refusing a defence application to exclude under the Police andCriminal Evidence Act 1984, s 76(2) evidence of an interview by the police, in which thedefendant had made statements amounting to a confession, had stated that they could rely on it ifthey were ure that it was true, even if it was or may have been made as a result of oppression orother improper circumstances. The House of Lords considered that the logic of s 76(2) - whichprovided for a confession to be excluded where the prosecution had not established that it had notbeen obtained by oppression or in consequence of anything said or done that was likely to render itunreliable - was that the jury should have been directed to disregard the confession if theyconsidered that it was or might have been obtained by oppression or in consequence of anthing


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said or done likely to render it unreliable. The direction was also considered to an invitation to thejury to act in a way that was incompatible with the defendant’s right against self-incriminationunder Article 6(1) ECHR. However, as there was no evidence of oppression or any other impropermeans in obtaining the confession, the direction had been unnecessary and could not have affectedthe fairness of the defendant’s trial or the safety of his conviction.

It was held in R (on the application of the Crown Prosecution Service) v. Bolton Magistrates’Court [2003] EWHC 2697 (Admin), [2005] 2 All ER 848 that, where a witness who had beensummoned to give a deposition pursuant to para 4 of Schedule 3 to the Crime and Disorder Act1998 refused to answer questions on the ground of privilege against self-incrimination, that claimshould be the subject of proper investigation by the justices in respect of each and every questionfor which it was claimed. Furthermore, before acceding to a claim to privilege, the court shouldsatisfy itself, from the circumstances of the case and the nature of the evidence which the witnesswas called to give, that there was a reasonable ground to apprehend real and appreciable danger tothe witness with reference to the ordinary operation of the law in the ordinary course of things andnot a danger of an imaginary or insubstantial character. The duty of the court was non-delegable soit could not simply adopt the conclusion of the solicitor advising the witness.

The provisions of the Youth Justice and Criminal Evidence Act 1999, s 21(5) - the effect of whichwas that the court had to give a ‘special measures direction’ in relation to a witness under 17 yearsof age ‘in need of special protection’ which provided for video recorded evidence-in-chief to begiven by that witness and for any evidence not given by a video recording, whether in-chief orotherwise, to be given by a live television link - were held in R (on the application of D) v.Camberwell Green Youth Court [2005] UKHL 4, [2005] 1 All ER 999 to be compliant withArticle 6 ECHR in so far as they prevented individualised consideration of the necessity for aspecial measures direction at the stage at which the direction was made. It was considered thatnothing in the special measures provisions was inconsistent with the principles enunciated by theECtHR as to the admissibility of evidence; all the evidence was produced at the trial in thepresence of the accused, some of it in pre-recorded form and some of it by contemporaneoustelevision transmission. The accused could see and hear all of it, as well as having everyopportunity to challenge and question witnesses against him at the trial itself. Furthermore thecourt had the opportunity to scrutinise the video-recorded interview at the outset and exclude all orpart of it and at trial it had the fallback of allowing the witness to give evidence in the courtroomor to expand upon the video recording if the interests of justice so required/ Moreover, with regardto the equality of arms the court had wide and flexible inherent powers to ensure that the accusedreceived a fair trial, was not at a substantial disadvantage because the 1999 Act scheme did notapply to him and could give his best quality evidence.

In uholding the defendant’s conviction for burglary, which relied upon a confidential statementmade by a suspect in an entirely separate inquiry, in which he had said nothing adverse to thedefendant’s interest in respect of the burglary (being either entirely exculpatory or entirely neutralin effect) but in which he had stated that he had made threats against the defendant after theburglary and not before as claimed by defendant when advancing a defence of duress, it was heldin R v. Hasan [2005] UKHL 22, [2005] 4 All ER 685 that a statement intended by the maker to beexclupatory or neutral and which appeared to be so on its face but which became damaging to himat trial because, for example, its contents could then be shown to be evasive or false or inconsistentwith the maker’s evidence on oath was not a ‘confession’ for the purposes of the Police andCriminal Evidence Act 1984, ss 76(1) and 82(1) and thus could be excluded. It was further heldthat there was nothing in the text of Article 6 ECHR or the case law of the European Court ofHuman Rights which supported the view that ss 76(1) and 82(1) created any incompatibility withart 6 and, given the unrestricted capability of s 78 of the 1984 Act to avoid injustice by excludingany evidence obtained by unfairness, including wholly exculpatory or neutral statements obtainedby opporession, ss 76(1) and 82(1) were compatible with art 6.


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Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomaccelerate the implementation of the reforms of the criminal justice system in Northern Ireland andprovide for an obligation on disclosure judges there to regularly review court proceedings injuryless trials.


In dismissing a challenge to the lawfulness of the warning under the final warning schemeestablished for children and young persons by the Crime and Disorder Act 1998 - whereby a policeofficer could give a warning to a young offender with no previous convictions if he had evidencethat the young offender had committed an offence, the offender admitted that he had committed itand the officer was satisfied that it would not be in the public interest for the offender to beprosecuted, with the warnings being registered on the police national computer and, in the case ofcertain offences, the sex offenders register - it was held in R (on the application of R) v. DurhamConstabulary [2005] UKHL 21, [2005] 2 All ER 369 that neither a warning nor the decision towarn under the scheme in ss 65 and 66 involved the determination of a criminal charge withinArticle 6(1) ECHR since, even if there had been one at the beginning of the process, it could notbe held to endure once a decision had been made that ruled out the possibility of any trial, orcondemnation or punishment and it was not part of the duty of the police officer to decide,determine or adjudicate whether the offender was guilty or not. Furthermore the recording of thewarning on the police national computer and the sex offenders register a public announcement ordeclaration of guilt as access to the computer and register was controlled and limited to a smallnumber of authorised persons.

In dismissing applications for compensation under the Criminal Justice Act 1988, s 133 (whichincorporated ICCPR, Art 14(6) by providing for compensation where a conviction had beenreversed on the ground that a new or newly discovered fact showed beyond reasonable doubt thatthere had been a miscarriage of justice), it was held in R (on the application of Murphy) v.Secretary of State for the Home Department [2005] EWHC 140 (Admin), [2005] 2 All ER 763that, where new evidence resulted in a finding of fact and the fact so found could properly bedescribed as a new or newly discovered fact, then the relevant statutory condition could be meteven if the evidence and resulting finding of fact related to a matter that was in issue at trial.However, the disclosure of a fact (in the instant case evidence previously undisclosed by theprosecution) between trial and the determination of an appeal brought within the normal time limitcould not engage the operation of section 133 since that provision, read in the light of Article 14(6)was concerned only with facts that emerged after the ordinary appellate process had beenexhausted. Furthermore it was not sufficient that the new or newly discovered fact made somecontribution to the quashing of the conviction as it had to be the principal, if not the only, reasonfor the quashing of the conviction. Only then could it be said that the new or newly discovered factshowed beyond reasonable doubt that there had been a miscarriage of justice. In the instant casethe newly disclosed evidence was considered to be one of a number of factors rendering theconvictions unsafe.

Article 49. Principles of legality and proportionality of criminal offences and penalties

Legality of criminal offences and penalties


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Mr Alvaro Gil-Robles, Commissioner for Human Rights, in the report on his visit to the UnitedKingdom, 4th – 12th November 2004, (CommDH(2005)6), recommended that the United Kingdomshould: ensure that Anti-social behaviour order guidelines adequately delimit the nature of thebehaviour targeted.; exclude the possibility of authoritising ASBOs on the basis of hearsayevidence alone; restrict the ability to apply to the courts for Anti-Social Behaviour Orders to theauthorities currently invested with this right.


The House of Commons Home Affairs Select Committee has carried out an inquiry into anti-socialbehaviour (behaviour that causes, or is likely to cause, harassment, alarm or distress) and theresponse to it from central and local government. It heard evidence that the current definitions ofanti-social behaviour are too broad, leading to jurisprudential and other concerns but concludedthat they should not be changed as they work well from a practical enforcement point of view, arehelpful in focusing on the effect on victims and offer the flexibility that is essential to allowproblems of ASB to be highlighted and tackled where they are felt—at a local level. At the sametime, it concluded that local residents need to be more fully involved in the process of defininglocally what is to be treated as anti-social behaviour and believed that there was a need for moreeffective communication as to the standards of behaviour that are to be expected—especially inrelation to young people. The Committee rejected arguments that the Government's anti-socialbehaviour policies are overwhelmingly punitive towards children and that its strategy was skewedtowards enforcement. It stated that it had seen much evidence that in many parts of the country,legal powers are used only relatively rarely. The Committee considered that, overall, the balanceof the Government's strategy is about right. It also welcomed the introduction of a number of newpowers to deal with anti-social behaviour, including housing injunctions and demotions, anti-social behaviour orders (ASBOs) and dispersal powers. It considered that these could providemuch-needed relief for communities suffering from the impact of nuisance behaviour. However, itrecommended that qualitative research be commissioned as a matter of urgency to determine thetake-up of the main housing powers, their effectiveness in tackling anti-social behaviour and theirimpact on homelessness. It noted that ASBOs are commonly seen as the central element of theresponse to anti-social behaviour but emphasised that they are used only in response to a smallfraction of incidents of such behaviour: it found that in most cases, local authorities, housingassociations and other agencies will try informal approaches first. The Committee concluded thatmost of the criticisms of ASBOs were unfounded but did recommend that the minimum term ofASBOs (currently of two years) be removed in relation to young people and considered thatresearch is necessary to establish the reasons for those few ASBOs which have been issuedinappropriately or contain inappropriate conditions; Anti-Social Behaviour, HC 80-I, 5 April 2005.

The House of Commons Welsh Affairs Committee welcomed the legislation introduced by theGovernment to tackle anti-social behaviour, but recommends that time is now given for thatlegislation to bed in to the working practices of the police. It further recommended, that theGovernment establishes a clearer definition of what constitutes anti-social behaviour so thatstrategies can be better designed to combat that behaviour. The Committee identified some initialconcerns about the low number of ASBOs issued in Wales compared to England but concludedthat the low use of ASBOs is a result of a considered and appropriate response to tackling anti-social behaviour in Wales. The Committee welcomed the 'Welsh approach' which is based on astrategy for staged intervention which uses ASBOs as a measure of last resort. It recommendedthat the Government establishes a measurement for success which better reflect the Welshapproach. It also recommended that clear guidelines be given to magistrates so that ASBOs can beissued quickly, when considered necessary; Police Service, Crime and Anti-Social Behaviour inWales, HC 46-I, 23 March 2005.


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The Serious Organised Crime and Police Act 2005 inserts into the Crime and Disorder Act 1998new sections 13A to 13E which provide power for magistrates' courts in England and Wales tomake parental compensation orders ("PCOs") on application by a local authority up to a maximumof GBP 5,000. The magistrates' court will be able to make a PCO where it is satisfied to the civilstandard of proof that a child under the age of 10 has taken or caused loss or damage to property inthe course of behaving anti-socially or committing an act that would have been criminal if he were10 or over and where making the order would be desirable in the interests of preventing arepetition of the behaviour in question. The order will require the child's parent(s) or guardian(s)(other than a local authority) to pay compensation to any person or persons affected by the takingof the property or by its loss or damage.

Article 50. Right not to be tried or punished twice in criminal proceedings for the samecriminal offence


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